Land and Environment Court New South Wales

• Medium Neutral Citation: Burwood Council v Ralan Burwood Pty Ltd [2013] NSWLEC 173
• Hearing dates: 25, 26, and 27 March; 2, 3, 4, 9, 22, 23, 24, 26, 29, and 30 April 2013; 14 May 2013; 13 August 2013; further written submissions 28 August 2013
• Decision date: 16 October 2013
• Jurisdiction: Class 4
• Before: Sheahan J

Decision

1. Council's Third Further Amended Summons is dismissed.

2. All exhibits are returned.

3. The Council is ordered to pay the costs of all three respondents on a party-party basis, as agreed or assessed, unless within 21 days any one or more of the parties file(s) motion(s) seeking different costs orders.

• Catchwords: JUDICIAL REVIEW: application by Council for (1) declarations of invalidity of construction certificates, (2) declarations that developer in breach of Environmental Planning and Assessment Act 1979, and (3) orders for remedial work - validity of certificates - do changes to a project agreed by a certifier make the development "inconsistent" with the consent - whether orders can be made against those not in breach of the Act - whether developer is vicariously responsible for acts of others - utility of declarations - discretion - costs
• Legislation Cited: Architects Act 2003; Building and Construction Industry Long Service Payments Act 1986; Building Professionals Act 2005; Conveyancing Act 1919; Environmental Planning and Assessment Act 1979; Home Building Act 1989; Land and Environment Court Act 1979; Strata Schemes (Freehold Development) Act 1973; Conveyancing (Sale of Land) Regulation 2010; Environmental Planning and Assessment Regulation 2000
• Cases Cited: Abret Pty Limited v Wingecarribee Shire Council [2009] NSWLEC 132; Abret Pty Limited v Wingecarribee Shire Council [2011] NSWCA 107; 180 LGERA 343; Ashfield Council v Andrews (1986) 60 LGRA 248; Blue Mountains Conservation Society Inc v Delta Electricity (No 3) [2011] NSWLEC 145; (2011) 81 NSWLR 407; Botany Bay City Council v Ralansaab Pty Ltd [2010] NSWLEC 225; (2010) 178 LGERA 44; Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; (2011) 183 LGERA 228; Cessnock City Council v Laila [2012] NSWLEC 206; CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd (In Liq) (Receivers and Managers Appointed) (No 3) [2012] NSWLEC 6; Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232; (2009) 172 LGERA 225; Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 2) [2010] NSWLEC 73; Director-General, NSW Department of Industry & Investment v Mato Investments Pty Limited (No 4) [2011] NSWLEC 227; Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd [2003] NSWLEC 70, (2003) 128 LGERA 240; Evans v Accident Insurance Mutual Holdings Ltd [1998] 2 Qd R 350; Ex parte Parker; Re Brotherson [1957] SR; (NSW) 326; Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128; Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229; Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473; Great Lakes Council v Lani; Great Lakes Council v Lani and Lampo Pty Limited [2007] NSWLEC 681; Hatton v Beaumont [1977] 2 NSWLR 211; Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472; Holroyd City Council v Murdoch (I994) 82 LGERA 197; Klefend Pty Ltd v Santom Pty Ltd [1994] NSWLEC 201; (1994) 88 LGERA 307; Kogarah City Council v Armstrong Alliance Pty Ltd (No 2) [2013] NSWLEC 32; Lesnewski v Mosman Municipal Council [2005] NSWLEC 99; (2005) 138 LGERA 207; Marvan Properties v Randwick City Council [2005] NSWLEC 9; Murdoch v Holroyd City Council (unreported, 20 November 1996); Newcastle City Council v Northern Residential Pty Ltd [2009] 165 LGERA 274; (2009) NSWLEC 10; North Sydney Council v Moline (No 2) [2008] NSWLEC 169; North Sydney Municipal Council v Ekstein (1985) 54 LGRA 440; Northern Residential Pty Ltd v Newcastle City Council [2009] NSWCA 141; (2009) 75 NSWLR 192; Pearce v Brooks (1866) LR I Ex 213 at 217; Progress and Properties Pty Ltd v Burwood Council [2008] NSWLEC 1178; Progress and Securities Building Pty Ltd v Burwood Council [2006] NSWLEC 518; Progress and Securities Building Pty Ltd v Burwood Council (No 2) [2008] NSWLEC 135; (2008) 158 LGERA 102; Progress and Securities Pty Ltd v Burwood Council [2006] NSWLEC 706; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Rochford Rural District Council v Port of; London Authority [1914] 2 KB 916; Rossi v Living Choice Australia Ltd (No 3) [2013] NSWLEC 46; Sahade v Mosman Municipal Council; [2000] NSWCA 251; Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148; WD & HO Wills (Australia) Ltd v State Rail Authority of New South Wales (1998) 43 NSWLR 338; Wilkie v Blacktown City Council and Others [2002] NSWCA 284, (2002) 121 LGERA 444; Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5) [2013] NSWLEC 68; Woods v Bate (1986) 7 NSWLR 560; Woolworths Ltd v The Warehouse Group (Australia) Pty Ltd [2003] NSWLEC 31; (2003) 123 LGERA 341; Wright v West Torrens City Corporation (1996) 91 LGERA 197; Ying v Song [2009] NSWSC 1344; Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661
• Category: Principal judgment
• Parties: Burwood Council (Applicant); Ralan Burwood Pty Ltd (1st Respondent); Lyall Dix (2nd Respondent); John Morgan (3rd Respondent)
• Representation: Mr P Clay SC with Mr S Nash, barrister (Applicant); Mr P Tomasetti SC with Mr J Johnson, barrister (Respondents); Houston Dearn O'Connor (Applicant); Storey & Gough (Respondents)
• File Number(s): 40091 of 2013

Judgment

A: Introduction

The proceedings generally

1 These class 4 proceedings, brought by the relevant local council, concern a major development project at 1-3 Railway Parade, Burwood, and, as the matter finally evolved, especially its external appearance.

2 Class 4 embraces proceedings concerning environmental planning protection and civil enforcement/judicial review. They are neither criminal proceedings, nor merits review proceedings.

3 Council's class 4 summons was issued on 12 February 2013 - against the developer, Ralan Burwood Pty Ltd ('Ralan'), and two private certifiers Lyall Dix and John Morgan.

4 The Council sought, in the original summons, a series of declarations, and restraining orders, and a mandatory order to demolish or rectify the building, because of changes made to some design features, in breach of the consent granted by the court to the subject development ("DC"). Reasonable minds often differ on questions of aesthetics in the execution of an approval, but breach of that approval is a very different matter.

5 Ralan contended from the outset of the hearing (Tp133, LL16-23 - emphasis mine) that:

... the court has no jurisdiction to make orders against Ralan Burwood Pty Ltd on the basis of the case as framed. Our case is, your Honour, that, as the court knows, with respect, we relied on the construction certificates. The builder went ahead and built the building in accordance with the construction certificate documentation, and Ralan Burwood has done nothing more than fund and coordinate the development and rely on its builder and rely on the architect and rely on a government appointed private certifier to do what he was doing.

6 Council initially challenged the validity of six construction certificates ("CC"), issued by Dix, between 31 August 2010 and 8 August 2012, and two interim occupation certificates ("IOC"), issued by Morgan, on 19 February and 15 March 2013.

7 However, many of the Council's initial challenges fell away over time, and, after a series of amendments, and some supervening events, a more confined series of challenges became the subject of this judgment (see [204] below). The focus of the case ultimately became the validity or invalidity of the CCs.

8 All eight certificates originally challenged were issued in purported compliance with the provisions of Part 4A (ss 109C-109R - see [232] below) of the Environmental Planning and Assessment Act 1979 ("the EPA Act"). Section 109H indicates that the failure of any CC will bring down any IOC reliant on it.

9 The very many provisions of the EPA Act which were canvassed in these proceedings, including Part 4A, will be set out later, along with other relevant statutory and regulatory provisions, in a separate, comprehensive section of this judgment (section 'F')

10 Council is represented by Mr P Clay SC and Mr S Nash of counsel, instructed by Timothy James O'Connor of Houston Dearn O'Connor, and all three respondents are represented by Mr P Tomasetti SC and Mr J Johnson of counsel, instructed by Christopher Calvert Gough of Storey & Gough.

11 Dix and Morgan filed submitting appearances.

The challenged certificates

12 The notice of commencement of building work, and the appointment of Dix as PCA, was signed on Ralan's behalf by its director, William Patrick O'Dwyer on 17 December 2009, and by Dix as the appointed PCA, on 5 May 2010 (Exhibit C19).

13 Dix purported to issue all six challenged CCs, on the following dates:

(1) 31 August 2010 (CC 208/10 = "CC1" = Exhibit C2 tab 2a),

(2) on 23 December 2010 (CC 472/10 = "CC2" = Exhibit C3 tab 2b),

(3) 21 October 2011 (CC 245/11 = "CC3" = Exhibit C4 tab 2c),

(4) 12 March 2012 (CC 044/12 = "CC4" = Exhibit C4 tab 2d),

(5) 17 May 2012 (CC 109/12 = "CC5" = Exhibit C5 tab 2e), and

(6) 8 August 2012 (CC 185/12 = "CC6" = Exhibit C5 tab 2f).

14 Each CC contained the following "description of Building Works" it covered:

Erection of a mixed-use development consisting of 268 dwellings in 3 towers, shops and commercial suites [or "retail at ground floor commercial/retail suites at mezzanine/first floor/level 2"] over 4 levels of basement parking.

15 To each CC was added a short description of the component of the project covered by that certificate:

CC1 - "Piling associated with Lot 1"

CC2 - "Bulk excavation, shoring and piling"

CC3 - "Structural building works up to Ground Floor"

CC4 - "Building works up to and including Level 3"

CC5 - "Building works up to and including Level 12, excluding civil works in Railway Parade"

CC6 - "Building works for Level 13 and above, excluding external works and landscaping"

16 It is clear that CCs 1-3 do not bear upon any issues with the external finish/appearance of the project above ground level.

17 The operative clause in each CC says (emphasis mine):

I certify that:

• the work, if completed in accordance with documentation accompanying the application for the certificate (with such modifications verified by the certifying authority as may be shown on that documentation), will comply with the requirements of Environmental Planning & Assessment (EP&A) Regulation 2000 as are referred to in sec. 81A(5) [of the EPA Act].

(Section 81A(5) merely enables the making of regulations governing CCs)

18 Four of the five volumes of "Council's bundle" tendered by Mr Clay, namely Exhibits C2-5, purport to contain all the CC documents (in tabs 2a-2f), as well as the CCs themselves. Those documents were said to be "all plans and specifications produced by the second respondent [Dix] to the applicant ...". In respect of each CC in those exhibits, there are, respectively, 545, 366, 278, 100, 97 and 102 folios of supporting material, all said to have been provided to the PCA in the application for the relevant CC.

19 However, the Council's most relevant officer, Brian Charles Olsen, its Manager Building and Development, deposed (5 February 2013, par 25) that documents attached to the CCs, which were sent to Council, were date-stamped by Council, and that other documents in Council's possession, and relevant to them, may not have been.

20 In response to the five-volume Council tender, Mr Tomasetti tendered a further bundle comprising documents produced by Dix to O'Connor (Exhibit R3), in response to Council's Notice to Produce ("NTP"), dated 15 February 2013. Dix described them in his covering letter of 20 March 2013 (to O'Connor), as "additional documents ... located during a file review, in a separate box which was not located with the CC". The relevant NTP (included in Exhibit R3) had sought all six CCs "including all plans and specifications in relation to which" each CC "has been issued".

21 Council alleged that the six challenged CCs were issued by Dix without his having obtained appropriate design verification, and without his satisfying the requirement that the works be "not inconsistent" with the DC.

22 In the cases of some of the later CCs (Nos 3-6), Dix is said to have relied on inadequate verification by Ralan architect Stephen John Bowers (Managing Director and Principal of the company Stephen Bowers Architect Pty Ltd, which also trades as "Sd Masterplan" - "Sd"), who insists to the court:

(1) that he is appropriately qualified to provide design verification (see cl 143A, and accompanying note, in [233] below), and

(2) that, as project architect, he has built the project in strict accordance with the CCs.

23 The Council challenged the two IOCs on the principal basis that Morgan had not been validly appointed as the PCA for the development, and so lacked the power to issue either of them. The IOCs allegedly also lacked appropriate design verification, and the building was thought by Council to have constituted, at the time the IOCs were issued, a hazard to the health or safety of the occupants.

The primary hearing

24 No interlocutory relief was sought by Council, but the substantive hearing was expedited, primarily because of financial and regulatory pressures on Ralan at the time.

25 At that time, Ralan was also obliged to register a Strata Plan by 2 October 2013, or risk losing the benefit of its extensive sales "off the plan", said (Tp549, LL28-9) to amount to $150M.

26 Ralan was also concerned that delay in completion and occupation of the project would aggravate its vandalism problem on the site (Tp398, LL45-6).

27 On the other side of the matter, Council supported expedition - it was concerned, at the time of the principal hearing, that, once the complex was physically completed, its early occupation would compound the difficulty involved in doing any rectification works, short of demolition, that might be ordered by the court.

28 Just prior to the first reservation of this judgment on 30 April 2013, following 12 days of hearing, much of the time occupied by evidence likely to be relevant to questions of discretion, senior counsel for the respondents addressed me (Tp877, LL40-47) on the "question of urgency", thanking the court for its "indulgence ... throughout the matter", and offering any assistance the respondents could provide to help the court expedite its judgment.

29 Some elements of that urgency, and possible complications with the need for rectification works, were addressed by events in the courtroom when the matter was brought back before the court on 14 May 2013, for determination of a Notice of Motion ('NOM') brought by the respondents, in light of events which occurred after the primary hearing concluded on 30 April 2013.

The matter returns to court twice after judgment initially reserved

30 On 30 April 2013, when judgment was first reserved, it seemed likely that, even if Council were largely successful, it might be difficult for the court to arrive at final orders (see Tp854, LL46-9 and T14.5.13, p32, LL34-7). However, a number of issues had fallen away as the primary hearing progressed, and then, while judgment was reserved, several others fell away, or were resolved extra-curially.

31 A NOM was listed before me on 14 May 2013, seeking, on the respondents' behalf, the following orders:

1. That leave be granted to the First and Third Respondents to be released from the Undertakings given to the Court on 26 March 2013.

2. That leave be granted to re-open the proceedings to enable fresh evidence to be tendered regarding the Strata Subdivision of the development.

3. Such further Orders as the Court deems fit.

32 The Council strenuously opposed the relief sought, but, over that opposition, I allowed the reopening, with the consequences that:

(a) the respondents' Points of Defence were amended;

(b) one more exhibit was tendered by the respondents (namely, the special conditions included in contracts of sale for units in the project - Exhibit R20);

(c) four additional affidavits were read; and

(d) an undertaking which had been given by Ralan and Morgan on 26 March (Exhibit R6 - see [170] below) was partially released by the court, in favour of the personal undertaking given by O'Dwyer (Exhibit R19), which is in the following terms:

I, William O'Dwyer, undertake to the Court that I will guarantee personally the carrying out of any work on the building at 1 Railway Parade, Burwood which the Court might order the First Respondent to carry out in these proceedings.

33 Judgment was again reserved on 14 May 2013. I will return later to the events of that day (see [183] - [191]), and what has followed since (see [192] - [197]), but I note here that, by the time I concluded my examination of all the material which was before the court by the end of that further hearing on 14 May, I had become even more acutely aware of the ever-shifting context of the dispute, and the need for real finality in the outcome of the case.

34 Accordingly, I brought the parties back before the court again on 13 August 2013.

35 It appeared to me on 13 August that there remained an obvious need for the Council to review the orders it had suggested to the court on 30 April 2013, and for both parties to inform the court of what amendments ought then be made to the pleadings, to the alternative short minutes of those suggested orders, and to the parties' respective written submissions, to take account of relevant events which occurred after 30 April, and especially after 14 May, 2013.

36 The parties agreed to take certain actions in that regard. I made orders accordingly, and the documentation they jointly filed on 28 August 2013 (see [195] ff) is now reflected in this judgment.

Introducing the project

37 The development site is considered to be a "key location ... in the heart of the [Burwood] town centre", and has "high visibility from the public domain" (Morrish affidavit, pars 6.7 and 6.9).

38 The project comprises three towers ('A', 'B', and 'C') on a retail/commercial podium, and includes 268 residential units, 62 retail and commercial suites, and associated underground parking; it has cost between $120M and $150M (par 55f of Amended Points of Defence c.f. Tp730, LL15-16); and it has generated some controversy.

39 The respondents allege (Tp395, LL5-7) that "Council actually sought to elicit complaints from the public", but they submit that the level of public complaint was "de minimis", resulting in "no proven concern in the community of any substance" (Tp428, LL47-8).

40 However, the project has generated much litigation over the years, and more detailed background to these present proceedings will be set out in Section "B" of this judgment (from [60] below).

Introducing the respondent Ralan

41 Ralan is one of a group of companies ("the Ralan Group") which is controlled by O'Dwyer, who usually incorporates a new, project-specific Ralan company for each of his group's ventures. All Ralan companies are controlled by O'Dwyer, who is sole director and secretary of the first respondent in this present matter (see ASIC searches at Exhibit C5, tab 4). He is, as he was described by Mr Tomasetti (T14.5.13, p34, LL16-17), "the human person behind the Ralan Group of Companies and particularly Ralan Burwood" (see also T14.5.13, p39, LL29-31).

42 O'Dwyer's oral evidence was quite vague on some matters of detail, but it is certainly clear that he personally stands behind his companies when they are under pressure. In the Management Accounts for the first respondent, as at 28 February 2013 (Exhibit C20), there is a "Financial Commitment" signed by him for the "next 12 months", and he told the court that he was aware that these proceedings were threatened at the time he signed that commitment (Tp632, LL29-35). The evidence indicates that he, rather than the project's principal funder, the Commonwealth Bank ("CBA"), has funded some of the "larger" contract variations on the Burwood project (Tp592, LL16-17). He made clear to the court that he sees himself as personally bound to do whatever the court might order Ralan to do, and to seek adequate funding for it (Tp630, LL19-44).

43 On appropriate conditions regarding confidentiality, O'Dwyer provided sworn and other evidence of his own financial position, and that of the Ralan group (Exhibit C22, and affidavit 3 April 2013), and, when this matter was brought back before the court on 14 May 2013, he gave me, and verbally affirmed to the court, a personal guarantee (Exhibit R19, and T14.5.13, p39, LL15-49) that any work the court might order Ralan to do, as a result of these proceedings, would be carried out.

44 Throughout the project, Ralan has been under "escalating" financial pressure also because the Burwood project is linked to other Ralan Group projects around Sydney, which have sourced their funding from a range of lenders, not just the CBA. At least one of those projects was said to be "reaching a very important stage" at the time of the principal hearing (25 March to 30 April 2013 - O'Dwyer affidavit 3 April 2013; Tp294, LL1-43; and Tp638, LL33-5). According to Ralan (Tp639, LL12-13), an unhappy result in these proceedings would have a "disastrous effect" on the confidence of all the group's funders.

45 Ralan's CBA facility in respect of the Burwood project (approximately $90M - Tp549, L41) was due for repayment by 31 March 2013, following various extensions of time, and interest and bank fees were said to be accruing at the rate of $16,000 per day (see O'Dwyer affidavit 13 March 2013, par 22, but Ralan's counsel said "$18,000", in both his written and oral closing submissions - par 112, and Tp737, L50, and p815, L35).

46 The relevant senior CBA relationship manager, Ian Manwaring, was called to give evidence before me. He deals regularly with Ralan companies, but is "on the sales side", not the "risk side", of the bank (Tpp539-541 - he liaises with Nicky Parsons in the credit risk section).

47 Manwaring and the CBA have taken a particularly close personal interest in these proceedings since some adverse publicity about the project in the Sydney Morning Herald on 23-24 March 2013 (Tpp541-2), but the CBA made no "threat" to Ralan over this matter (Tp549) - taking possession of the Burwood property would be a "last resort" (Tp556, LL43-45).

48 On the contrary, Manwaring testified (Tpp551-6) that the CBA would consider any application by Ralan for funding in respect of any remedial works ordered by the court.

Introducing the respondents Dix and Morgan

49 Dix had been appointed as the project's Principal Certifying Authority ("PCA"), on 21 August 2010, but was "struck off" by the Building Professionals Board ("BPB") on 22 November 2012 (Exhibit C5, tab 3). (It is not alleged that that disciplinary action concerned this project).

50 Morgan was "appointed" to "replace" Dix, and he was joined as the third respondent to these proceedings, at the same time as expedition was ordered, namely on 19 February 2013.

51 Council also challenged, in these proceedings as originally pleaded, the validity of the second purported appointment of Morgan, on 26 March 2013.

52 As already noted ([10] and [11] above), both gentlemen filed submitting appearances in these proceedings, and were represented by Ralan's legal team.

Expert witnesses

53 In order to support the relief it sought in the summons, on account of alleged breach(es) of the EPA Act committed in the execution of the project, Council produced expert evidence:

(1) as to how the (appearance of the) project, as built, differs from what Council says the approval contemplated, and also

(2) as to how it might be improved, instead of demolished.

54 The respondents relied on no independent experts, but relied heavily on the evidence of the architect engaged on the project.

The structure of this judgment

55 Having introduced the matter at such length, I will now set out the relevant history, both up until various proceedings (including the present) were commenced, and since then (Sections 'B', 'C', and 'D', commencing at [60], [92], and [108] respectively).

56 Section 'C' deals with the various proceedings in a little more detail, and Section 'D' with:

(a) the project's alleged departures from the consent, pursuant to the CCs;

(b) the evolution of Council's concerns regarding those departures;

(c) the dealings between the parties;

(d) events during the hearing and subsequently;

(e) the evolution of the issues contested; and

(f) the relief sought by the Council.

57 I will then list the witnesses and other evidence ( Section 'E', from [217]).

58 In Section 'F' (from [226]), I will set out all the statutory and other provisions to which reference has been made during the hearing(s).

59 I will then turn to a consideration of the competing submissions of the parties (Section 'G', from [243])

B: Background to the Project, leading up to these Proceedings

Approval to develop the site

60 The former railway-owned site, known as 1-3 Railway Parade, was originally bought, and its development approval obtained, by Progress and Securities Building Pty Ltd ("P&S"). The initial development plans were prepared by Dixon Rothschild ("Dixon").

61 The site and its development were the subject of a series of cases involving P&S, Burwood Council and "RailCorp" (see Progress and Securities Pty Ltd v Burwood Council [2006] NSWLEC 518; Progress and Securities Building Pty Ltd v Burwood Council [2006] NSWLEC 706; Progress & Securities Building Pty Ltd v Burwood Council (No 2) [2008] NSWLEC 135, (2008) 158 LGERA 102; and Progress & Properties Pty Ltd v Burwood Council [2008] NSWLEC 1178).

62 The effective (modified) DC for the project (DC 306/05) was issued by the court (per Roseth SC) to P&S on 15 May 2008 ([2008] NSWLEC 1178 - Exhibit C6, tab 2). Many documents (now contained in Exhibit C1) were incorporated into that consent by a specific condition in it (Condition 1 - see Exhibit C6, tab 2, p2), and the approved plans (Exhibit C7) are also before the court.

Conditions of consent, etc.

63 Several conditions of consent (e.g. Nos 25, 57, 65, 174, 175, 188 and 199) imposed specific obligations on, or defined specific tasks to be performed by, the PCA, and several failures in these matters appear to be admitted.

64 Many of the conditions imposed by the court were specifically required by RailCorp, because of the location of the project adjacent to the western train line, close to Burwood Station (see pp46ff of the consent, conditions 179B-220E). Ralan estimates that RailCorp's requirements have added $21,563,000 to the cost of the project (Tp401, L4).

65 The relevant rail-related conditions are headed by the following "Note":

NOTE: In any case where RailCorp gives an approval under any condition of this consent, it may do so unconditionally or subject to conditions. In the event that it does so subject to conditions, all such conditions must be complied with by the Applicant, its contractors and any other person acting on this consent.

66 I note here that the condition of consent most relevant to the remaining dispute in this case, namely the external finishes of the building complex, would appear to be Condition 220G (at p54 of Exhibit C6, tab 2), which provides as follows:

The finishes of the proposed development must be in accordance with the External Finishes Board, which was prepared by Dickson Rothschild which is plan COM-A-902 Revision F and was issued on 23 April 2008 referred to in condition 1. Any modification to the finishes described in the External Finishes Board, at any time in the future, must be approved by RailCorp before it is carried out.

67 The project was also the subject of:

(1) a Voluntary Planning Agreement, signed on 19 June 2008, and varied on 10 September 2009 (Exhibit C6, tabs 3 and 6);

(2) three further modifications between 22 September 2010 and 29 February 2012 (tab 9); and

(3) another consent/modification, approved on 7 May 2013, after this judgment was first reserved on 30 April 2013.

Council's attitude to the project

68 While Council became extremely critical of the project as it approached completion, it should be noted that in the two class 1 proceedings which led to its 2006 approval, and to the 2008 modification, Council's stand on it was collaborative.

69 In his approval judgment ([2006] NSWLEC 706), Roseth SC said (at [4]):

The parties have agreed on all merit matters except the conditions of consent. Unusually, however, the dispute is not between the applicant [P&S] and the two respondents, but between the applicant and the first respondent [Council] on the one hand, and the second respondent [RailCorp] on the other. While nine conditions are in dispute, the objection to eight of them is covered by a similar argument, namely that, in the council and the applicant's submission, RailCorp wants unreasonable control (one might call it a "right of veto") over the development, thereby adding another layer of bureaucracy to the principal certifying authority and the council. RailCorp, on the other hand, maintains that ultimate control over those parts of the development that affect the railway line is necessary in the interest of a safe and efficient railway system, which is of paramount importance. ...

70 In his modification judgment ([2008] NSWLEC 1178), he said (at [2]):

Despite minor differences between the council and the applicant on the first day of the hearing, by the end all three parties were in agreement. Although the orders are not by consent, they reflect the wishes of the parties. ...

71 In the face of that relevant history, the Mayor said, in his media release of 27 November 2012 (Exhibit R12), for the content of which he was, according to the evidence of Council officers, primarily responsible, that the Council had been "overturned", on both occasions, by this court.

72 Council's witnesses were quite defensive, but, clearly, some of the history of the project has been distorted in the public domain by Council's public campaign against it, as represented by media reports, items published on its website, and Council's own newsletter, "Burwood Update", which is distributed to some 14,000 households. (See, generally, Tpp425-8, and 519-529).

73 The Council's campaign sought to have citizens make telephone complaints to this court about the circumstances of the approval of the project, and Mr Tomasetti described that (at Tp739, L50-p740, L1) as "the most extraordinary conduct ... by a government body like a council".

Ralan takes the project over

74 Ralan contracted to buy the site from P&S on 25 September 2008. Sales of units "off the plan" commenced in October 2008, although Ralan expected at least a twelve-month delay before building would commence. O'Dwyer told the court (affidavit 13 May, par 10) that 60% of Ralan's purchasers were investors.

75 Ralan's purchase from P&S was completed on 15 December 2009, at a land cost said to be approximately $24M. (The P&S land transfer in Exhibit C6, tab 7, says $21,950,000, and the later related transfer of Council lands, at tab 8, pursuant to the Planning Agreement, at tab 6, suggests an "agreed value" of $1,097,000).

Ralan engages its usual builder

76 The Burwood project has been constructed on Ralan's behalf, under a fairly standard "design and construct" contract, concluded between the Principal and Contractor companies, and dated 8 April 2010 (Exhibit R10). The contractor is Steve Nolan Constructions Pty Ltd ("SNC"), of which licensed builder Stephen Michael Nolan is the principal. SNC has regularly built, and now (since 2008) exclusively builds, for Ralan companies, on a "design and construct" basis (Tp642), usually several projects at a time.

77 O'Dwyer had discussed the Burwood site with Nolan in 2008, but was (Tpp644-8) not involved in any internal SNC discussions of the estimated price. He accepted SNC's tender for the project (in the sum of $70,150,000, plus GST) by letter dated 31 July 2009 (Exhibit C6, tab 12). That became the "contract sum" agreed in the April 2010 contract. External or façade finishes are quoted and done on a per-metre basis (Tp681, LL34-5) and the internal components were fairly standard for Ralan projects (Tp656-7). The contract included a schedule of finishes, but that schedule was silent on colour.

78 Both O'Dwyer and Nolan gave affidavit and oral evidence in these proceedings.

79 Nolan defended the stability, over time, of his quoted price, on the very same plans (Tpp645-8) - (i) the market was "flat"; (ii) he put "a bit of fat in it ($25,000 per unit)"; (iii) he remained "comfortable" with his estimates; and (iv) O'Dwyer was "happy with that price".

80 From time to time both Ralan and SNC have been involved, separately or together, in matters before this court. In some, issues of certification, and compliance with CC drawings, have arisen (Tp628, LL40-4). Counsel for the Council in the present matter sought to rely upon some of those other matters as a basis upon which to assert negligence or recklessness on the part of the Ralan companies, and some untruthfulness on the part of O'Dwyer himself in these proceedings (Tp616, LL1-13), but those attempts were successfully countered by counsel for Ralan (Tp872).

81 O'Dwyer seeks to end any proceedings promptly (Tp626, L39), as his companies need, financially, to finish their projects in a timely way (Tp639, LL30-3). O'Dwyer and Nolan confer on their projects, "generally ... about once a week" (Tp591, L44, and p642, LL1-13), and O'Dwyer particularly relies on SNC to build to CC plans, which Nolan "always has" (Tp625, LL32-4).

The approved design is amended

82 For the Burwood project, SNC engaged Bowers as the project architect. Nolan had worked with him on an earlier non-Ralan project, dating back to 2005 (Tp277), but Bowers was not associated with O'Dwyer.

83 On 19 November 2009, Bowers (and/or "Sd" - [22]) proposed to SNC a series of amendments to the Dixon design. In a letter to SNC on that date (included in the "November 2009" bundle in Exhibit C24 - see [88] below), he listed fourteen "amendments to the design, consistent with the intent of the approval, which facilitate significant cost reductions". One item of significance to the dispute now before the court was No "4. no curtain walls, window wall to be used".

84 Bowers explained to the court why changes were made, and he denied any "inconsistency" with the DC. (See from [125] below). He and the respondents contend that the "outcome is acceptable" (Tp138).

Funding is approved

85 On 15 February 2010, the CBA approved funding for the project (see Annexure "C" to O'Dwyer affidavit 25 March 2013) in the gross amount of $93M, guaranteed by O'Dwyer and nominated Ralan companies, and appointed Quantity Surveyors ("QS") Mitchell Brandtman (NSW) Pty Ltd as "Project Superintendent". The QS was selected by Ralan from a bank panel, but was then paid by Ralan, as borrower (Tp607, LL46-9).

86 That QS company is also nominated in the Ralan/SNC building contract (Exhibit R10) as the "Superintendent" (cls 2, and 23, and Annexure Part A p56). The apparent "duality" of the QS's roles as a superintendent under the two contracts was canvassed with both the CBA witness, Manwaring (Tpp544-5), and the QS's senior partner, Gregory Brandtman (Tpp671-5), during their oral evidence.

87 The QS made regular inspections, and consulted with SNC staff, as needed, but provided "totally independent assessments" of borrowing amounts and claims for progress payments (Tp678, L45). The CBA remained continually interested in the QS's estimated current "costs to complete" (Tpp681-9).

88 Brandtman had been involved with Ralan and SNC in the past, not always via the CBA (Tp675, LL36-45 and p677, LL30-9), and three of his company's reports to the CBA regarding the Burwood project (dated 23 November 2009, 3 September 2010, and 8 March 2013), all "approved for issue" by Brandtman himself, are before the court (Exhibit C24). He considered $70,150,000 to be a "competitive" price for an "extremely difficult" project, which he costed at $78.5M.

A PCA is appointed, and work commences

89 SNC appears to have commenced work on the building of the Burwood project in about September 2010, with Dix engaged as PCA (see Exhibit C19), as recommended by Bowers (Tp649, LL33-47). Nolan did not know Dix, but knew he was "pretty senior" (Tp650, LL1-3). He accepted his fee proposal on 4 August 2009 (see Exhibit C19). O'Dwyer signed off on the appointment without canvassing it with Nolan (LL5-13). Dix produced to the court his professional indemnity insurance policy, dated from 30 November 2011 (also in Exhibit C19).

The project is pre-sold

90 As already noted ([25] above), there were extensive sales "off the plan", with perhaps 60% of the purchasers being "investors" (T14.5.13, p13, L26, and O'Dwyer affidavit 13 May 2013, par 10).

91 During the hearing on 14 May 2013, the respondents tendered the special conditions in the standard contract of sale for the lots in the project (Exhibit R20). I will now set out the most relevant of those conditions:

31. The Development

31.1.1 The vendor intends to construct on the land to be subdivided a mixed use development building complex (the "Development") including 268 dwellings in three towers, retail at ground level, commercial and retail suites on levels 1 and 2 and four levels of basement parking.

...

33. Purchaser's acknowledgments

...

33.4 The purchaser acknowledges and agrees that:

33.4.1 both before and after completion, the vendor or persons authorised by the vendor may:

● undertake construction and development activities on the land to be subdivided, or on or in parts of the building comprising the Development;

● conduct selling and leasing activities on the land to be subdivided, or on or in parts of the building comprising the Development or on or in the common property; and

● place and maintain in and about the land to be subdivided or on or in parts of the building comprising the Development or the common property (but not the property) signs related to and advertising those selling and leasing activities; ...

...

38. Registration of Strata Plan

38.1 Completion of this contract is conditional upon registration of the strata plan substantially in the form of the draft strata plan annexed to this contract.

38.2 The Vendor must:

38.2.1 do everything reasonable to have the strata plan and any document to be lodged with the plan registered within 5 years of the date of this contract (the "registration date");

38.2.2 serve a notice on the purchaser confirming the date of registration of the strata plan and the strata plan number; and

38.2.3 on registration of the strata plan, cause the owners corporation to effect all insurances required by the Strata Schemes Management Act.

38.3 The vendor may (at any time and as often as is necessary) extend the registration date by serving on the purchaser a notice stating that the registration date has been extended by reason of:

38.3.1 delays to construction of the building forming the subject of the strata plan including, but not limited to, delays arising from site or weather conditions, industrial disputes or problems with the supply of materials; or

38.3.2 delays associated with obtaining any approval from Burwood Council or any relevant authority relating to the strata plan, the Development, the building or the construction thereof; or

38.3.3 damage, howsoever caused to the land, the building, the property or the common property; or

38.3.4 delays associated with the vendor obtaining from any caveator the consent to the registration at LPI-NSW of any plan, dealing or other covenants or documents; or

38.3.5 a combination of these or any other causes or delays beyond the reasonable control of the vendor,

whereupon the registration date is changed to the date specified in the notice served on the purchase.

38.4 If the strata plan is not registered before the registration date then, subject to clause 38.3 either party may rescind this contract by serving a notice.

...

40. Completion

40.1 Completion of this contract must take place on the date ("the completion date") which is the later of:

40.1.1 42 days after the date of this contract; or

40.1.2 21 days after the date upon which the vendor serves notice on the purchaser of the registration of the strata plan; or

40.1.3 14 days after the date upon which the vendor serves on the purchaser an occupation certificate under the Environmental Planning & Assessment Act (being either an interim occupation certificate or a final occupation certificate) issued by the appropriate consent authority or by an accredited certifier.

40.2 If the purchaser does not complete this contract on the completion date for any reason (other than because the vendor cannot complete) then the purchaser must, on completion, pay interest to the vendor calculated at the rate of 10% pa on the balance of the purchase price from the completion date up to the date of actual completion, inclusive of both days.

40.3 Interest payable by the purchaser in accordance with this clause is an essential term of this contract.

40.4 Without prejudice to any other right or remedy of either party, if completion does not take place on the completion date, then either party (not then being in default) may at any time thereafter, serve a notice upon the other party, requiring the party served with such notice, to complete this contract within a period of not less than 14 days (counted from the day after the day on which the notice is served), and in respect of such notice time is of the essence.

40.5 The purchaser cannot make a claim or requisition, delay completion or rescind or terminate this contract if on completion the original of any document (excluding documents of title) are not available to the purchaser or any mortgagee of the purchaser.

C: Relevant Proceedings concerning this project

2009 to 2012

92 On 24 November 2009, SNC commenced both class 1 and class 3 proceedings (09/10883 and 09/30882) against RailCorp, joining Council as a respondent to the class 1 matter. After protracted negotiations both proceedings were discontinued on or shortly after 28 October 2010, with costs reserved.

93 During 2012 the Council also commenced proceedings in both this court and the Supreme Court, against SNC, concerning the project. The Supreme Court proceedings were transferred to this court, and the two matters (12/41039 and 12/41152) were resolved together, with consent orders made in each, by Pain J on 16 November 2012. Those orders were entered on 21 November 2012 (Exhibit C14), but contempt proceedings have since been commenced, and remain on foot, against SNC, regarding performance of them.

The present and related proceedings - 2013

94 The summons commencing these present proceedings was issued on 12 February 2013.

95 Council's most recent concerns with the project have been:

(1) the finish and appearance of the buildings, as they approached completion, were said to involve departures from the DC, and

(2) various encroachments, first raised as an issue in about 2010 (Tp434, L32).

96 While it was those twin concerns that prompted these proceedings, Ralan commenced Class 3 and Class 4 proceedings (2013/30165 and 2013/40199) against Council, regarding the alleged encroachments. Ralan also commenced class 1 proceedings (2013/10181) against Council on 13 March 2013, in relation to the Stratum Subdivision of the project.

97 Matthews Folbigg acted for the Council in those class 3 and class 4 proceedings, and they were resolved, pursuant to a resolution adopted by Council on 23 April 2013 (resolution 65/13 - Exhibit R18, and Tp661, L16), by consent orders made by me on 29 April 2013 (Exhibit R16), while the hearing of the present matter progressed (see Tp796, L29).

98 That settlement of those class 3 and 4 matters was then actioned by the parties after I first reserved judgment in this present matter on 30 April 2013, and the class 1 proceedings were also discontinued.

99 On 30 April 2013, in accordance with the terms of settlement, but after reservation of this judgment, Council approved a development application (DA - No. 30/2013) to Strata Subdivide the project into 330 lots. One condition required that the certificate of Strata Subdivision "not be issued or released until an Occupation Certificate is issued for the whole development".

100 On 7 May 2013, Council notified its approval of a modification to that condition, replacing it with the following:

The Strata Plan shall also include a public positive covenant pursuant to section 88E of the Conveyancing Act to be registered over the common property whereby the Owner's Corporation covenants to grant all necessary access to Ralan Burwood Pty Ltd (Ralan), its builder, contractor, servants and agents to the common property to enable Ralan to carry out all works required by any orders that may be made by the Land and Environment Court in proceedings number 2013/40091 (Burwood Council v Ralan Burwood Pty Ltd & Ors). Burwood Council shall be the prescribed authority that may enforce the obligations against the Owner's Corporation and shall be the only person who has the power to release, vary or modify the terms of the public positive convenant.

101 On 8 May 2013, in what Mr Clay later described (T14.5.13, p6, LL13-14) as a "quite generous approach", Council issued a Strata Certificate for the Strata Plan.

102 Council could do so, under the Strata Schemes (Freehold Development) Act 1973, only where a CC was issued in respect of the building subject of the Strata Scheme.

103 On 8 May 2013, Ralan also paid the compensation specified in the consent orders ($250,000), and Council agreed to transfer its interest in the land encroached by the building.

104 Also on 8 May 2013, Council first became aware of a rather extraordinary letter written by Morgan on 22 April 2013 (to which I will return - at [177] below).

105 On 9 May 2013, the Strata Plan, endorsed with the Strata Certificate, was lodged with the Land and Property Management Authority, and given a dealing number ("SP88309").

106 On 9 May 2013, the respondents also filed the NOM which came on for hearing on 14 May (see [31] above).

107 O'Dwyer (affidavit 13 May, par 6) expected at that time that the Strata Plan would be registered by 29 May 2013, and told the court that settlements of lot sales were due 21 days after the notification of such registration (see cl 40.1.2 of the standard contract, quoted in [91] above).

D: The changing concern of these proceedings

Alleged departures from consent - project changed by CCs

108 The encroachment issues/concerns having been resolved while the hearing of these proceedings progressed, Council's principal concern in them became that (Tp4, LL8-11 - emphasis mine) "...what appears now is not what was expected. ... There have been, on the council's case, numerous departures from the development consent and inconsistencies between the construction certificate and the development consent". (The concept of "inconsistency", as distinct from "change", or "variation", is crucial to the central argument in the case).

109 The variations embodied in the challenged CCs were sought on the developer's behalf by Bowers, and "satisfied" the first respondent certifier, Dix. Some were canvassed with Council officers and/or RailCorp, and others were not. Clearly, from the evidence, some of those variations resulted in fairly substantial savings in the costs of the project.

110 The changes made to the approved project were the subject of much evidence and dispute between Bowers and one of Council's expert witnesses, expert architect/planner/designer Terence Paul Byrnes, but they were generally admitted by the respondents and their counsel (see Tp200, LL41-5; p202, LL9-19; p203, LL22-24; p204, LL47-8; and p366, L22).

111 Council's written closing submissions inferred (par 1), in the absence of any evidence of the use elsewhere of such terms, that this is a "hideously ugly building", constituting (par 3) "a blight on the built landscape of Burwood, and, indeed, given its size, metropolitan Sydney". Council then went on to allege (par 4) "breaches of a development consent granted by [this] court".

112 Mr Clay had said, in his opening submissions (at Tp13, LL1-29), that four types of changes appeared to have been made to the project depicted in the DC plans:

(1) those occasioned by the specific terms of a condition;

(2) those necessitated by the various regulatory regimes (Building Code of Australia ("BCA"), State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development ("SEPP 65"), etc);

(3) those occasioned by specific needs of RailCorp, and

(4) those which "seemed like a good idea at the time" (eg. to remove proposed external louvres to provide more light).

113 In his written closing submissions, (pars 60-62, which cover ten pages, i.e. pp18-27 of them), Mr Clay listed "the various admitted changes" made by the developer(s), and the explanations given for them by Bowers, namely that many of them were driven by the conditions of consent, BCA requirements, RailCorp and State Transit requirements, and some Council policies (such as on outdoor eating).

114 Those explanations, Mr Clay submitted, did not justify making the changes to the DC project without submitting a s 96 modification application, so as not to offend cl 145 of the Regulation. Even a PCA cannot usurp the functions of a consent authority.

115 Of those enumerated changes, some particular external features received the most attention during the hearing, and in Mr Clay's written submissions, namely:

(1) the omission from the project of what Mr Clay described as "a major and important design feature", namely the initially approved louvres (Item (n) in par 62), and

(2) the as-built finishes, including windows and frames, and their colours (Item (o)).

116 In addition to those two major items, Council complains of "deletion of three protrusions"; removal of street planter boxes (pending a landscape plan); elimination of the planned "upper storey cantilever in favour of street level columns"; and changes to carparking, drainage etc; fire stairs; kerb line; retail area configuration and replacement by a substation; the vehicular entrance; lobby areas; amenities and heritage atrium; spaces for commercial/rainwater reuse purposes; and the void area, fire hydrant tanks, and pump room.

117 Olsen, although technically "kept informed" during the various certification stages, complained that, as construction proceeded, he had access to only photocopied CC plans, which were "very average to say the least", and not to the level of detail of those placed before the court at the hearing of this matter (Tp481, LL26-35 and p484, LL46-47). As screened scaffolding was removed, the building presented primarily as "green" in colour (Tp496), rather than more "blue", or "cyan", as Olsen had expected from the modified DC plans. This indicated some issues about the window "framing", and the "glazing" finishes in general (see [114] above).

118 Throughout the construction/variation process, the changes, not only in this respect, but also in respect of the inclusion of "translucent" panels, and in respect of the deletion from the project of the originally approved addition to the façade of louvres/screening, all put to Dix by Bowers, were not of concern to either Ralan/SNC, or the CBA's QS, Brandtman (Tp692, LL47-p693, L2).

119 O'Dwyer testified that "images quite often vary from the finished product" (Tp621, L5), that the DC contained only "artist's impressions" (Tp638, LL1-5), and that he played no part in - nor did he query, when, in due course, he became aware of - the absence of louvres (see Tpp624-6). (See also Exhibits C23 and R14). He was not aware of the detail of the CC plans, and not involved in the technical discussions or decision-making regarding such details, and says that "it didn't enter [his] head" to seek to have SNC do the job more cheaply by deleting the louvres (Tp626, LL1-12).

120 Brandtman testified (at Tpp696ff) that he reflected the certified variations in his periodical reports to the CBA on progress payment applications, but did not discuss with Nolan either the changes made involving windows, or those deleting louvres. He was closely cross-examined on the movement in cost figures in his report (Exhibit C24), and he impressed the court as a frank witness.

121 Nolan says that he neither asked for, nor decided on, the deletion of louvres. He left to Bowers the finalisation of the CC drawings upon which SNC was to act, and any question of consistency or otherwise as between the CC drawings and the DC drawings. The finished façade cost less than Nolan had budgeted, but the saving "wasn't much" (Tpp655-7).

122 Once Council became concerned as the variations in the project became apparent, it retained an urban designer, Gabrielle Morrish, principal of G M Urban Design & Architecture Pty Ltd, to provide advice. When it mounted this court challenge to the alleged inconsistency between the DC and the CC drawings, it also engaged Byrnes to do a detailed comparison and analysis, and express his expert opinion on the "changes". In the hearing before me, Byrnes gave lengthy concurrent evidence with Bowers, and Council submits that Byrnes's evidence is clearly to be preferred.

123 Apart from giving details of his close comparison of the DC and CC plans, Byrnes deposed as follows, in respect of the "external finish of the building":

21. In addition to the changes to the floor plans, Construction Certificate 5 conspicuously varies from the approved Development Consent Plans in respect to the finishing elements making up the fenestration of the entire building and as referred to in Condition 220G of the Development Approval 306/05.

22. My conclusion is that as a final result the appearance of the building in no way even resembles the original intent of the approval and as depicted in the accompanying elevation drawings. The original component window module CW1 that predominated throughout the elevations has not been followed in their application to the building and the frameless CW2 widows (sic?) have been eliminated. Separate distinguishing, large scale, architectural features within the elevations have been deleted. Such that the entire character of the building appearance has been altered, compounded by the additional aid of a totally different range of colour choices and their application in detail.

...

54. The comparison to be drawn with the original approval from what has been built is the difference between a relatively dark colour palate of three articulated towers, segmenting an otherwise continuous podium. Each tower being further differentiated by two dissimilar forms of glazing within at least one of its facades. The proportion of opaque glazing being distinctly less than clear glazing.

55. The dominant pale blue and silver grey façade as constructed no longer retains an articulated appearance due to a coalescence and continuity within the previously three separate towers, differentiated only by the buildings' overall profile. But it is of totally different scales, to that of the approved drawings within the facades to the south and east in particular. Basically becoming more imposing and less interesting in the sum of its parts.

56. In contrast, as built, the total proportion of solid to clear glass within the fenestrations has been reversed and the pattern changed. The facades are articulated entirely differently and the colour now is unashamedly blue, not the variety of grey and black as originally intended by the approval.

124 Ralan admits that particularised changes were made, but seeks to excuse them, through Bowers, by asserting repeatedly, and demonstrating, "the contradictory nature of the [DC] documents", and seeking to "improve residential amenity", as mandated by SEPP 65 (see DC condition 2(a) - Tp249, LL23-25).

125 In this context, Bowers thought the louvres effectively diminished residential amenity, and obstructed access to some private open space. In addition, he complained that there was "no clear indication as to where they should actually be" (Tp250, LL46-7, and p836, LL9-16). As there was a PCA in place for the project, he did not discuss these issues with Council. Nor did he consult O'Dwyer or Nolan (see generally Tpp252-276).

126 Bowers also admitted, in his evidence, that the builder had made a few "mistakes", such as the external panelling error identified on the view, but such defects, omissions and "incompletions" would normally be rectified between "practical completion" and actual completion, pursuant to the contract. Some of those "faults" can be fixed from inside the building, but none of them impact on the performance by Bowers of his duty to provide a design verification statement - that task does not require his doing "quality inspections" (Tpp319-326).

127 Bowers acknowledged that the glazing was expected to "have a blue hue" (rather than grey, clear, or "neutral" - see, e.g. Tp335, LL29-35, and his answers to Mr Clay at T338, L38-p342, L13), and its framing to be more "charcoal" than "pearl" (see e.g. Tp30, L33 c.f. p31, L12; p51, LL21-27; p290, LL43-9; p299, LL34-6; and Tp837). He researched the colour and glazing process options (e.g. Exhibit C5, tab 2e, fols 78ff, and Exhibits R7 and C25), before settling on the sample (Exhibit R9) he showed the certifier in late 2011 (Tpp346, and 372-3), and included it in tender packages (Tpp356-369).

128 Bowers and Byrnes disagreed when asked (at Tpp369-70) about "the primacy given to a [DC] schedule of finishes by description or specification", over the "colouring in of a building on a plan" when determining "what colour is selected for the building". Byrnes would give primacy to the schedule, but Bowers said (Tp369, LL43-6):

I have to disagree with that because the schedule, in itself, represents something quite different to what's in the elevations and because of the large numbers of inconsistencies in the drawings, I did my best to develop the design such that it was not inconsistent with the consent.

129 Bowers later added (Tp370, L34-p371, L9) that the primacy of "the schedule" depends on consistency among the documents, because "the colouring in is done specifically to represent the colours".

130 Bowers gave a slightly different, and in some ways a more detailed, account of his conversations with Olsen, and later, also with Macdonnell, Council's Deputy General Manager (Tpp375-383).

131 Bowers says that, in terms of colours and glazing, he took Olsen through "the same process" as he had followed with Dix, with the sample and a "colour wheel", to explain how the "vertical elements have to fit within the framework of the glazing system", and that "there are inconsistencies with the plans and there are anomalies with the schedules of finishes". He was seeking "a holistic representation of the consent", and, at the time of his discussions with Council, "the building was incomplete and therefore had elements yet to be put in place that would improve its appearance, along with the cleaning of the façade at the end of the project".

Council expressed and explored its concerns before commencing these proceedings

132 Council became concerned about the external façades of the building as the scaffolding was being removed late in 2012, and its officers corresponded with, and met with, Bowers (rather than Ralan or SNC), during and after September 2012 (see especially Council's key letter to Bowers dated 12 September 2012, at Exhibit C6, tab 19).

133 Of particular concern at that time was the use of "translucent panels", which were said to (1) not be included in the court approved plans, (2) "look markedly different" from the approved materials, (3) "detract from the appearance of the building as a whole", (4) have an adverse impact on the building's visual amenity, and (5) set an "unsatisfactory precedent" for Burwood Town Centre.

134 Copies of the letter of 12 September 2012 were intended by Council to go to Dix, SNC, and Ralan, but do not appear to have reached them (see Tpp506-513). Council's usual practice appears to have failed on this occasion, despite the copy of that letter (at tab 19) carrying the endorsement "for your information".

135 Bowers responded to Council on 17 September 2012 (tab 20), indicating that he had identified "certain inconsistencies" in the approval documentation when he was "developing the court approved design". He particularised some "shortcomings" in the "illustrative materials and finishes elevation". Bowers informed Nolan of Council's concerns, and assured him that the Council staff understood the position he had taken (Tp653, L13-p655, L4).

136 Olsen is a qualified, but no longer accredited, building surveyor (Tp479, L35). It was with Olsen that Bowers had been dealing, and Olsen drafted and despatched Council's 12 September 2012 letter. He told the court he did not stamp "for your information" on the copies of it (see [134] above, and Tp513, LL4-6).

137 For completeness, I set out now the wording of that important letter:

I refer to the above development and to your recent conversation with Council's Manager Building & Development, Mr Brian Olsen regarding the external finishes to the above building. With the gradual removal of the scaffolding around the building that is under construction it has become apparent that translucent panels have been used in the external facades of the building.

The translucent panels were not included on the schedule of exterior finishes in the plans approved by the Land & Environment Court of NSW in its decision dated 15 May 2008. The translucent panels have a markedly different appearance to the materials as approved by the Land & Environment Court of NSW. As such, the translucent panels are considered to detract from the appearance of the building as a whole, adversely impacting upon the visual amenity of the area, as well as creating an unsatisfactory precedent for the Burwood Town Centre.

Your urgent attention to this matter is requested to ensure that the building is erected in accordance with the approval granted by the Land & Environment Court of NSW to save any further action by Council. Please contact Council's Manager Building & Development Mr Brian Olsen on 9911 9870 during business hours if you require further clarification on this matter.

138 Olsen went on leave from about 22 September to about 11 October 2012, and did not pass on to any other Council officer any responsibility for monitoring or assessing the "compliance" of the façades of the project (Tp442, LL17-47).

139 When he returned to duty, Olsen reported to the General Manager, in a Briefing Memorandum dated 23 October 2012 (affidavit 27 March 2013, Annexure "C", p1, par 7 - my emphasis):

Notwithstanding the concerns raised by the public and the Mayor, after discussion with the architect for the applicant and perusal of the documentation in Council's records it appears that the applicant is proceeding within the limits of the approval granted by the L & E Court. It was not envisioned at the time that the development was approved that it would be finished in this manner however the front façade treatment (Railway Parade) has still to be completed and it should improve with the vertical elements still to be provided.

140 Olsen reported again, in a further Briefing Memorandum dated 19 November 2012 ("C", p2, par 7 - my emphasis):

Council has met with the architects for the development and it appears that the building is not yet completed but it appears that the building is generally being completed in accordance with the approval granted by the Court.

141 The position Olsen took in October/November went no deeper than making observations which indicated that he could not be satisfied that the work was either within or outside the approval (Tp445, L43-p449, L50), but his two memorandums did not go even that far. He and Macdonnell agreed that they should simply wait to see if Bowers' assurances proved sound (Tp439, L20-p440, L20), even though completion was not far away, at which stage it may prove too late to question the finishes (Tp450, LL44-6).

142 When the time came to consider giving a s 121B order, Olsen and Macdonnell accepted Bowers' assurances (Tp504), and decided that there was "not enough evidence to ... sustain" one (Tp453, L43). It is unclear whether the Mayor was consulted.

143 The position Olsen took, and his apparent slowness to act, were seriously challenged in cross-examination (Tpp481-493). As Council was not the PCA for the project, no inspections were sought or conducted (Tp502-3).

144 Olsen's 19 November 2012 memorandum had three attachments, which were omitted from the affidavit as filed, but added to it, without objection, during the hearing (Tp408, LL20-1). They dealt with a representation made to the Mayor, by Mr and Mrs Comino of Croydon, dated 10 November 2012, which said that they had expected the subject site to "remain largely open space", and they complained that the project was a "monstrous eyesore", which "has the appearance of very cheap construction", and is "much too large for the site".

145 Another public complaint, emailed to Council by a person whose name was not disclosed to the court, but dated 20 November 2012 (Annexure "D" to Olsen's affidavit of 27 March 2013) said (at p3):

On the Railway Parade side, the building looks quite stunning, with developers (Ralan Property Services), currently selling/leasing dozens of modern apartments

...

However on the railway side, the lower section of the building is comprised of a single massive concrete block wall, which appears to be the outer wall of a retail centre or car park.

146 Olsen was assigned the task of preparing a response to the Cominos. A letter was signed by the Mayor, and despatched to them on 11 December 2012, enclosing a copy of a Mayoral Minute, dated 4 December 2012.

Council commissions an urban design assessment

147 Consideration of that Mayoral minute by the Council led to (1) Council's engagement of Morrish to give it a report on the building ([122] above), and (2) the commencement of a public "Who approved the Development?" campaign (Resolution 189/12, noted as being carried unanimously - see p3 of Annexure "C" to Olsen affidavit 27 March 2013).

148 Morrish reported to Council, on 14 and 20 December 2012 (Exhibit R4), that the materials used "should be deemed unacceptable", that the building had "significant discrepancies", and that it was "vastly different" from what was approved. Olsen conceded that it was only after Council received Morrish's reports that his views on the project hardened (Tp504).

149 It should be recorded here that Morrish swore a detailed affidavit on 22 March 2013, for use in these proceedings, criticising in great detail both the design work and the affidavit evidence of Bowers. The respondents objected to its admission into evidence, but I allowed it - courts must look for "proportionate" remedies, and she proposed measures to "save" a project from compulsory demolition and "improve" its appearance (see Tp145ff, and [194] (4) below).

150 Her criticisms should be considered by reference to comparisons between the artist's impressions used in the DA plans, and in later marketing by Ralan, and recent photographs of the actual building (compare sheets "COM-A-000" and "-001" of Exhibit C7; Exhibit C23; Exhibit R14; and p5 of Exhibit GM1 in Morrish's affidavit 22 March 2013, against photographs at pp 4, 6, 7 of Exhibit GM1 to that affidavit).

151 I will not quote the whole of Morrish's affidavit, upon which she was not cross-examined, but her key points follow:

152 Morrish considers it very important for the Burwood Town Centre to achieve "high quality design" on the subject site (par 6.10), and goes on to analyse (pars 7-12) why the Ralan project does not do so, and to assert (par 13) that it creates a poor precedent for development in the area. She annexes (par 14) a series of photographs taken by her on 5 March 2013 (pp 4, 6 and 7 of Exhibit GM1, cited above). Detailed criticisms of Bowers' affidavit of 18 March 2013 follow (par 15).

153 It is her opinion that the vertical louvre panels were planned as "the dominant visual element", and their omission results in a lack of "differentiation", which exacerbates the bulk and scale of three "bland" towers. The outcome is "aesthetically ... very poor", with "very little visual relief and no sculptural qualities". It looks more commercial than residential, is "monotonous and monolithic", appears "already dated" prior to completion, and does not satisfy the design principles in SEPP 65. (See [124] above, and [238] below).

154 I should note at this point that, in commencing his oral closing submissions, Mr Clay placed particular emphasis on the following comments by Morrish in her affidavit (sections 7.1, 7.2, 7.6, 10.3, 10.4 - Tp820):

... There is almost no articulation or visual interest in the three towers and the architectural language is repetitive to the point of creating a vast, continuous built form with little visual relief.

...

... the proposal presents as a continuous unrelieved built form with repeating vertical window treatments of domestic character ...

The architectural expression lacks any articulation or expression of strong vertical elements. The facades appear flat and continuous and this adds to the visual bulk and monotony of the three towers ...

...

The proposal appears out-dated before it is complete and does not achieve current standards for architectural expression for apartment buildings. It does not meet the design standard of what could reasonably be expected for one of the most prominent sites in Burwood Town Centre.

...

Viewing the actual building it does not contribute positively to the public domain. To the railway it is monotonous and monolithic. To Railway Pde the glass base provides some visual relief but above this the development is again monotonous and does not achieve the quality outcomes expected.

...

... an overall appearance that it is already dated even before the project is finished. The curtain wall expression is poor in quality and appearance.

Solicitors become involved

155 After receiving Morrish's December 2012 reports, Council corresponded further with Ralan and Bowers, and O'Connor began writing to Dix, SNC and Ralan, on 20 December 2012 (Exhibit C6, tabs 21ff), putting Council's position very plainly. O'Connor detailed in that correspondence the alleged "inconsistencies" and "discrepancies", and nominated five "general issues" of concern to Council, with a focus on the colours used in the façade. He suggested a meeting of the key "players", but also sought undertakings that building work would cease.

156 O'Dwyer testified (Tp620) that his receipt of that O'Connor letter marked his first knowledge of the problems with the Burwood project.

157 Gough contended, in reply to O'Connor (tab 25), that the works depicted in what he called the "fraudulent" DC plans simply could not be constructed, because of substantial differences among the plans and elevations.

158 Because the project was being built in accordance with the CC plans, as required by the Act, whereas Council persisted in relying on the DC plans to criticise the building, Gough said that work would continue, but he was happy to meet "to explain the rationale behind the CCs ..." (tab 31). However, no meeting occurred.

159 Ralan purported to appoint Morgan to "replace" Dix, "the current PCA", on 11 February 2013 (Annexure "C" to the affidavit of Council's Area Building Surveyor Nelson Silva, sworn 15 March 2013).

160 In the absence of any cessation of work, or the giving of any undertakings, Council threatened proceedings on 23 January 2013, and commenced these civil, rather than criminal, proceedings, by summons, on 12 February 2013.

161 As a result of correspondence between Gough and O'Connor at the end of February and in early March 2013, an understanding was reached that Council would not pursue interlocutory relief. (See also Tp505).

The relief sought in the final form of the summons

162 Several amendments were made to the summons, but in its final form (the Third Further Amended Summons - "TFAS") the following relief was sought (with emphasis and sub-headings added):

...

CC1

2. A declaration that no design verification from a qualified designer was provided prior to the issue of construction certificate No. 208/10 dated 31 August 2010 ("CC1") in respect of the building at 1 Railway Parade Burwood ("the subject premises"), in breach of Clause 143A(2) the Environmental Planning and Assessment Regulation 2000.

3. A declaration that Construction Certificate No. 208/10 dated 31 August 2010 ("CC1") issued by the Second Respondent with respect to the subject premises is void and of no effect.

...

CC2

5. A declaration that no design verification from a qualified designer was provided prior to the issue of construction certificate No. 472/10 dated 23 December 2010 ("CC2") in respect of the building at 1 Railway Parade Burwood ("the subject premises"), in breach of Clause 143A(2) the Environmental Planning and Assessment Regulation 2000.

6. A declaration that Construction Certificate No.472/10 dated 23 December 2010 ("CC2") issued by the Second Respondent with respect to the subject premises is void and of no effect.

CC3

7. A declaration that the design and construction of the building at the subject premises as depicted in the plans and specifications referred to in construction certificate No. 254/11 dated 21 October 2011 ("CC3") are inconsistent with development consent No 306/05 granted on 13 November 2006 as modified, in breach of clause 145 of the Environmental Planning and Assessment Regulation 2000.

8. A declaration that no design verification from a qualified designer was provided prior to the issue of construction certificate No. 254/11 dated 21 October 2011 ("CC3") in respect of the building at 1 Railway Parade Burwood ("the subject premises"), in breach of Clause 143A(2) the Environmental Planning and Assessment Regulation 2000.

9. A declaration that Construction Certificate No. 254/11 dated 21 October 2011 ("CC3") issued by the Second Respondent with respect to the subject premises is void and of no effect.

CC4

10. A declaration that the design and construction of the building at the subject premises as depicted in the plans and specifications referred to in construction certificate No. 044/12 dated 12 March 2012 ("CC4") are inconsistent with development consent No 306/05 granted on 13 November 2006 as modified, in breach of clause 145 of the Environmental Planning and Assessment Regulation 2000.

11. A declaration that no design verification from a qualified designer was provided prior to the issue of construction certificate No. 044/12 dated 12 March 2012 ("CC4") in respect of the building at 1 Railway Parade Burwood ("the subject premises"), in breach of Clause 143A(2) the Environmental Planning and Assessment Regulation 2000.

12. A declaration that Construction Certificate No. 044/12 dated 12 March 2012 ("CC4") issued by the Second Respondent with respect to the subject premises is void and of no effect.

CC5

13. A declaration that the design and construction of the building at the subject premises as depicted in the plans and specifications referred to in construction certificate No. 109/12 dated 17 May 2012 ("CC5") are inconsistent with development consent No 306/05 granted on 13 November 2006 as modified, in breach of clause 145 of the Environmental Planning and Assessment Regulation 2000.

14. A declaration that no design verification from a qualified designer was provided prior to the issue of construction certificate No. 109/12 dated 17 May 2012 ("CC5") in respect of the building at 1 Railway Parade Burwood ("the subject premises"), in breach of Clause 143A(2) the Environmental Planning and Assessment Regulation 2000.

15. A declaration that Construction Certificate No. 109/12 dated 17 May 2012 ("CC5") issued by the Second Respondent with respect to the subject premises is void and of no effect.

CC6

16. A declaration that the design and construction of the building at the subject premises as depicted in the plans and specifications referred to in construction certificate No. 185/12 dated 8 August 2012 ("CC6") are inconsistent with development consent No 306/05 granted on 13 November 2006 as modified, in breach of clause 145 of the Environmental Planning and Assessment Regulation 2000.

17. A declaration that no design verification from a qualified designer was provided prior to the issue of construction certificate No. 185/12 dated 8 August 2012 ("CC1") [sic] in respect of the building at 1 Railway Parade Burwood ("the subject premises"), in breach of Clause 143A(2) the Environmental Planning and Assessment Regulation 2000.

18. A declaration that Construction Certificate No. 185/12 dated 8 August 2012 ("CC6") issued by the Second Respondent with respect to the subject premises is void and of no effect.

Works done

19. A declaration that the First Respondent has carried out work at the subject premises otherwise than in accordance with Development Consent No 306/05 granted on 13 November 2006 as modified in breach of s76A Environmental Planning and Assessment Act.

20. Further, or in the alternative, a declaration that the First Respondent has carried out work at the subject premises otherwise than in accordance with CC1, CC2, CC3, CC4, CC5, and/or CC6 in breach of s76A Environmental Planning and Assessment Act.

21. A declaration that the First Respondent commenced the erection of the buildings at the subject premises without a construction certificate for the building work having been issued by an accredited certifier in breach of s81A(2)(a) Environmental Planning and Assessment Act.

Restraining Orders against the First and Third Respondents?

22. An order that the First Respondent be restrained from applying for an Occupation Certificate (being a certificate referred to in s109C(1)(c) of the Environmental Planning & Assessment Act) with respect to the subject premises.

23. An order that the Third Respondent be restrained from issuing an Occupation Certificate (being a certificate referred to in s109C(1)(c) of the Environmental Planning & Assessment Act) with respect to the subject premises.

24. An order that the First Respondent be forthwith restrained from carrying out any further work otherwise than in accordance with the Development Consent as modified from time to time.

Occupation Certificates

25. A declaration that the Occupation Certificate issued by the third respondent on 19 February 2013 with respect to the subject premises, is void and of no effect.

26. A declaration that the Occupation Certificate issued by the third respondent on 15 March 2013 with respect to the subject premises, is void and of no effect.

27. An order restraining the first respondent from occupying or using the subject premises unless and until an Occupation Certificate is issued in accordance with the provisions of Part 4A of the Environmental Planning and Assessment Act.

Third Respondent

28. A declaration that the purported appointment of the third respondent on 26 March 2013 as Principal Certifying Authority in respect of building work involved in the development the subject of development consent No 306/05 granted on 13 November 2006 as modified, under s 109E of the Environmental Planning and Assessment Act 1979, is void and of no effect.

Remedy?

29. An order that the First Respondent demolish or otherwise rectify any work carried out in breach of the Environmental Planning and Assessment Act.

30. Costs.

31. Such further or other orders as the case may require.

163 Council later modified its claims from those made in this TFAS. I will return shortly to point out ([201] - [202]) which of the above prayers for relief have not been pressed. I will also set out later ([230] - [235]) the relevant provisions of the EPA Act, and of the Environmental Planning and Assessment Regulation 2000 ("the Regulation"), to which the TFAS refers.

Morgan issues Interim Occupation Certificates after the Summons was filed

164 On 19 February 2013, Morgan issued an IOC for Tower A and associated car parking (IOC 015/13, Exhibit C11, fols 1-231).

165 On that date he was also joined in these proceedings. His appointment was challenged, and the proceedings were expedited.

166 On 15 March 2013, Morgan issued a second IOC, in respect of the residential component of Tower B (IOC 024/13, Exhibit C12, fols 1-73). In his affidavit (sworn 14 May 2013) he indicated some of his activities since issuing those two IOCs, he being now aware that the strata plan and encroachment issues have been resolved, but that other relevant issues remain before the court.

167 Silva expresses in his affidavit evidence his expert opinion that neither IOC should have been issued, as the building, at each relevant date, was "not suitable for occupation in terms of s 109H(4)(b)" of the EPA Act, "would constitute a hazard to the health or safety of the occupants..., and there was no proper access..." (affidavit 15 March 2013, pars 11-12, and affidavit 21 March 2013, pars 10-11). He listed on each occasion the grounds upon which he relies, and exhibited many photographs he took on 14 February, 26 February, 11 March and 18 March (folios 232-274 of Exhibit C11, and fols 74-91 of Exhibit C12).

After the primary hearing commenced

168 The expedited primary hearing of the matter commenced before me on 25 March 2013.

169 On 26 March 2013, O'Dwyer purported (a second time) to appoint Morgan as PCA for the project (Exhibit R5).

170 Also on 26 March 2013, the respondents Ralan and Morgan gave the following undertakings to the court (Exhibit R6, and Tp 184):

The First Respondent undertakes to the Court:

1. That it will not allow, authorise or permit the occupation and use of the building at 1/3 Railway Parade, Burwood ("the property") without a final occupation certificate.

2. That it will not apply for an interim or final Occupation Certificate for the property without first informing the Applicant.

3. That it will notify the Applicant in the event that it receives a final occupation certificate for the property and will not occupy the building for 7 days thereafter.

The Third Respondent undertakes to the Court:

4. That he will not issue an Interim or Final Occupation Certificate until further order.

(Counsel for the respondents contended during the hearing, and in their written closing submissions, that the undertakings not to rely on the IOC, and not to issue any more, rendered "hypothetical" the challenges relevant to the OCs, such that the court should decline to deal with them: Klefend Pty Ltd v Santom Pty Ltd [1994] NSWLEC 201. (Tpp 385-6)).

171 In both her affidavit, and Exhibit C13, which amplified it (tendered on 3 April 2013), Morrish proposed six "potential improvements ... to achieve a reasonable design quality" (see [194] (4) below).

172 Ralan then engaged Brandtman to evaluate SNC's assessment of what it would cost to do the "remediation" works Morrish was recommending (see Tp404, and [194] (4) below).

173 On 19 April 2013, the BPB issued an approval to Ralan to appoint Morgan "to replace" Dix as PCA, purportedly in accordance with s 100EA(1)(a) of the EPA Act. He was appointed (again), following that approval, and, on 22 April, Gough notified Council accordingly (see Exhibit R11). It is not an appointment, as such, by the Board, but an approval, by the Board, of an appointment to be made by the owner of the project.

Council's Points of Claim are finalised

174 The applicant Council's Points of Claim ("POC") were finalised (Third Further Amended POC - "TFAPOC") on 24 April 2013.

175 They gave very detailed particulars of Council's challenges to the Part 4A process in respect of each certificate challenged, and also of the alleged inconsistencies between the CC plans and specifications and the DC, especially in regard to CCs 3, 4, 5, and 6 (POC to No.38A). They then particularised (POC 39-45) the Council's challenges to the IOCs, and (POC 46-48) the alleged non-compliances of the development with the DC (especially condition 1, which incorporated the documents in Exhibit C1, and condition 220G, which dealt with "finishes" - see [66] above).

After judgment was reserved (the first time) on 30 April

176 The hearing continued until, and including, 30 April 2013, when judgment was reserved (Tp878). In apparent reliance on the respondents' undertaking (Exhibit R6), which he had consistently said was not satisfactory to the Council, Mr Clay did not seek any interlocutory orders to prevent occupation of the project. (See T14.5.13, p25, LL19-20).

177 On 8 May 2013, Council received, for the first time, a rather clumsy letter from Morgan dated 22 April; i.e. it was apparently written, if not sent, while the hearing progressed. That letter, which is before the court (as annexure 'B' to Olsen's affidavit of 10 May 2013, and annexure 'D' to O'Dwyer's affidavit of 13 May 2013), says:

We would like to advise we are in receipt of an Occupation Certificate application for Block C of the above development.

Please be advised that the Interim Occupation Certificate for Block C is imminent and dependent upon the receipt of a relevant certificate and a follow-up inspection.

We expect that they will be delivered to us within the next few days and when received, the Interim Occupation Certificate will be issued.

Please be advised this notice is in accordance with the letter to Tim O'Connor of Houston Dearn O'Connor Solicitors and Attorneys dated 4 February 2013 and as such no Interim Occupation Certificate will be issued by this firm prior to 12 noon, Thursday 14 March 2013. (sic?)

178 Morgan eventually resiled from the essence of that letter in his affidavit of 14 May 2013, in which he deposed (pars 2 to 5):

I refer to my letter of 22 April 2013 in which I advised that I was in receipt of an Occupation Certificate application for Block C. In fact, that is not the case and I have not received an application for the issue of an Occupation Certificate.

In particular I am aware that only a person with the benefit of a Development Consent can apply for an Occupation Certificate and I have had no contact with or documents from Ralan Developments Pty Ltd.

I have received documents from Steve Nolan Constructions Pty Ltd ("SNC") which were certifications as to various matters which are necessary to be completed before an Occupation Certificate can be issued. I have also attended the site at the request of and with employees of SNC to discuss the matters which must be completed before an Occupation Certificate can issue. I understand that SNC wants to be in the position where an Occupation Certificate can be considered immediately an application is made.

I was aware of my undertaking to the Court not to issue an interim or final Occupation Certificate until further order and have not done so. I was informed that the matter had settled with the Council and I believed that my undertaking had lapsed by reason of those orders. I now appreciate that the encroachment and strata plan issues have been resolved but that other issues remain to be decided by the Court.

179 O'Dwyer deposed (pars 14-15 of affidavit 13 May 2013):

... At no stage have I requested or applied to John Morgan for the Occupation Certificate referred to in this letter. I have not spoken to him nor communicated with him at all. I have made enquiries with my staff and representatives and have been informed that nobody on behalf of Ralan has made any such application.

I have not requested Steve Nolan Constructions Pty Limited or its officers or contractors to make such an application. The first time I became aware of this matter was on Friday 10 May, 2013 when I was informed that the letter had been sent to Council.

180 Immediately on receipt of Morgan's letter, O'Connor put Gough on notice that Council would bring the case back before the court for breach of Morgan's undertaking not to issue any OC, and possibly also a breach of Ralan's undertaking (par 2 of Exhibit R6). Within minutes Gough confirmed the undertakings, and then, on 9 May 2013, foreshadowed seeking to relist the matter so as to withdraw the undertakings, and to inform the court of the implementation of the settlement of the strata issues.

181 O'Connor responded that he understood that "the concession made by Council to vary the strata subdivision consent removed [the respondents'] need to seek release from their undertakings". Gough refuted that understanding, prepared a NOM, sought relisting, and confirmed that "Morgan has not issued an OC for Block C".

182 The relevant Gough/O'Connor correspondence is also annexed to Olsen's affidavit of 10 May 2013. Also annexed to it was an exchange of correspondence between Gough and Matthews Folbigg (as the firm acting for Council on those matters), on 1 May 2013, concerning the strata issues.

The Further hearing on 14 May 2013 leads to orders

183 As already noted above ([32]), when the respondents' NOM to reopen came on for hearing on 14 May 2013, the Council strenuously opposed all the relief sought, but wanted the respondents' issues decided immediately.

184 The outcome was that I partially released Ralan and Morgan from the undertakings they had given to the court on 26 March 2013 (Exhibit R6), and accepted the personal undertaking given by O'Dwyer (Exhibit R19 - see [32] (d) above).

185 Short minutes of the orders I pronounced orally on 14 May were later agreed between the respective solicitors, and with myself in Chambers, and the effects on the respondents' revised undertakings to the court were (cf Exhibit R6, as quoted in [170] above):

(1) That Ralan would not occupy or use the building without an interim OC (Exhibit R6 had said "final")

(2) That Ralan would continue its undertaking in par 2 about keeping Council informed of its activities regarding OCs (Exhibit R6 par 2 remained unamended)

(3) That Ralan undertook that in the event of its receiving an IOC after that date, it would not occupy the property for 7 days (Exhibit R6 par 3 was deleted and replaced)

(4) That Morgan no longer undertook not to issue an interim or final OC without a further order (Exhibit R6 par 4 was discharged).

186 I also granted leave to Ralan to amend its Points of Defence, and to lead fresh evidence, which largely dealt with the strata subdivision of the development, but included the special conditions included in the contracts for the sale of the units in the project (Exhibit R20 - see [32] (b) and [91] above).

187 Mr Clay appeared to concede (T14.5.13, p28, LL31-5) that, as a consequence of the BPB's decision on 19 April (Exhibit R11 - [173] above), there was now no challenge to Morgan's status as PCA, at least from that date, 19 April.

188 He also appeared to concede that some amendment(s) would be required to Council's pleadings or formal documents (Tp28, L41-p29, L21).

Amended Points of Defence are filed

189 The Amended Points of Defence ("APOD") finally filed in court on 14 May 2013, in response to the TFAPOC, make many admissions and concessions on factual matters, but not on the alleged breaches involved in CCs 1-6, and they plead discretion on the grounds that any breach was technical and "of no consequence" on a number of bases (see APOD 8, 13, 21, 26, 32, and 38).

190 The APOD comprehensively defend the IOCs, and the March appointment of Morgan (APOD 39-46), and they rely on the undertaking(s) given to the court (Exhibits R6, and R19) for the exercise of discretion in favour of the respondents. They say that the appointed builder (SNC) is entitled to rely on s 109P of the EPA Act, and to assume that all the Part 4A certificates were duly issued. Both SNC and Morgan were "exercising a 'function' under the EPA Act" (APOD 47-50). The APOD rely also on s 80(12), and alleged difficulties with the DC plans (APOD 51-54).

191 The APOD conclude with very detailed grounds for the exercise of discretion in the respondents' favour (APOD 55 'a' to 'x'), to deny the relief sought in the applicants' TFAPOC. In their oral final submissions (Tpp737-41) counsel for the respondents placed particular emphasis on Council's delay in taking action while the project raced towards completion. The amendment I allowed to the POD on 14 May 2013 added APOD par 55 'y' (and made consequential amendments APOD 55 'd' and 'e'). The hearing on 13 August, and the documents filed in consequence of it refined these issues (see [35] - [36] above).

The matter returns to Court again on 13 August 2013

192 At the conclusion of the hearing on 14 May 2013, I again retired to consider my decision. However, it gradually became very clear that the matter could not be readily determined in a final way without further assistance from the parties, and I called them back before the court on 13 August 2013, to outline my concerns.

193 It was fairly clear to the court that the respondents' case remained basically as outlined in their written submissions of April (subject to some possible updating of their factual context), but that, if I were to avoid the position faced, for example, by Pain J in Rossi v Living Choice Australia Ltd (No 3) [2013] NSWLEC 46, requiring a second hearing, the Council needed to review its "final" position of 30 April, to take proper account of subsequent events, not least my orders of 14 May, and their consequences.

194 As at 13 August 2013, the court was considering the matter on the basis of five sets of materials:

(1) The Council's TFAS ([162] above), seeking, pursuant to s 123 of the EPA Act, 22 declarations, four restraining orders, and one mandatory injunction, plus an order for costs and any necessary "further orders".

(2) The Council's TFAPOC, giving very detailed particulars of:

(g) Council's challenges to the Part 4A process in respect of the CC challenges,

(h) the alleged inconsistencies between the CC plans and specifications and the DC, as modified,

(i) Council's challenges to the IOCs, and

(j) alleged non-compliances of the development with the DC (especially condition 220G).

(3) The respondents' APOD, filed in court on 14 May 2013, which make many admissions and concessions on factual matters, but defend alleged breaches involved in the CCs, and comprehensively plead grounds for the exercise of discretion in favour of the respondents.

(4) Three alternative sets of draft orders put forward by the Council (Exhibit C27), during Mr Clay's closing oral submissions on 30 April. (Note that Exhibit C27 was initially misnumbered in the transcript, but the numbering was later corrected in an email from my chambers, dated 2 May). All three drafts adopted the changes that Morrish recommended be made to the exterior of the as-built project, "as a minimum" of "potential improvements" to achieve "an adequate solution" to the design problems she identified" in the project.

The Morrish changes central to Exhibit C27 (as per her affidavit 22 March 2013, par 16) were:

• Remove the glazing modules at the tops of all the towers to both the north and south which were intended to be CW2 and replace with a neutral grey glass with frame behind the glass to create true visual differentiation.
• Remove the continuous 'solid' vertical panels that are glazed with the more solid blue grey glass to the north and south elevations for the full height of the tower and the full height of the shoulders of the towers and replace with a new material that provides vertical emphasis. It should have as much horizontal projection or be recessive to create vertical emphasis that begins to break up the overwhelming length of the combined building form and gives visual relief. There should be no framing visible for these elements.
• Removal of the cladding to the edges of the floor slabs for the entire building returning down the sides of the building until meeting the vertical screens (see below) and replace with a new cladding panel that matches the colour of the new vertical material, preferably with a greater projection where possible that the existing glass façade to give visual emphasis to the horizontal proportion between the vertical elements.
• Removal of the more 'solid' blue glass above the hamper window bands and replace with a glass that gives the impression of a darker grey closer to the effect of the clear glass to balance the proportion of darker/clear to the blue more solid panel.
• For the podium link between the towers to Railway Pde change the glass below the hamper panels and above the hamper panels to the same darker grey glass (closer to the effect of the clear glass) to differentiate more effectively between the tower forms.
• Provide and fix powder coated aluminium vertical louvre blades over the existing façade to the sides of each of the towers for one of the modules of the façade to introduce vertical emphasis and create visual relief. The extent may vary on each tower subject to the module proportions.

(As already noted (in [172] above), Ralan engaged Brandtman (affidavit 28 March 2013) to cost some job specifications which SNC (affidavit 25 March 2013) had prepared for the Morrish-proposed remedial works. Morrish then opined (in Exhibit C13) that SNC and Brandtman had identified "broader" remediation works than she had intended. Brandtman then reviewed his costings, and arrived (in Exhibit R15) at a likely remediation cost of $11,940,000 plus GST. He estimated that the Morrish remediation works might take one year to complete, largely because they will require some closure of the neighbouring railway lines (Tp704, LL1-16). The schedule to each option in Exhibit C27 is a slightly, but appropriately, edited version of Morrish's Exhibit C13. All three options included orders requiring Ralan to (1) submit plans for the recommended work, (2) apply to Morgan for a CC on those plans, and (3) carry out the work within specified time limits; but they also continued the Council's challenge to Morgan's March appointment, while ignoring the February appointment and the BPB's April approval.

(5) The closing submissions from counsel for both sides, which put the following respective positions (on 30 April 2013):

5.1: Council's "4 broad issues" (subs par 15) -

(a) The validity of the 6 construction certificates purportedly issued by Dix with respect to the plans for the building works the subject of the Development Consent;

(b) The validity of 2 (interim) occupation certificates purportedly issued by Morgan with respect to the occupation and use of the building the subject of the Development Consent (and, following Morgan's purported appointment as Principal Certifying Authority in respect of the development the subject of the Development Consent pursuant to s 109E of the Environmental Planning and Assessment Act 1979, the validity of that purported appointment);

(c) The carrying out of construction of the development the subject of the Development Consent otherwise than in accordance with the Development Consent (s 76A) and commencing development without a valid construction certificate in breach of s 81A(2); and

(d) The exercise of the Court's discretion to the grant of relief.

5.2: Ralan (subs par 1) -

a. The First Respondent is not in breach of the Act.

b. Because the First Respondent has not breached the Act, the Court cannot and would not make orders against the First Respondent.

c. The Court should not make orders declaring the construction certificates ("CCs") to be invalid because:

i. In the scheme of the Act, it is not the legislative intention for a breach of any of the pre-conditions to the issue of a CC to give rise to invalidity;

ii. In the exercise of the court's discretion, the Court would not declare the CCs to be invalid.

Further documents are jointly submitted on 28 August

195 As a result of the hearing on 13 August, the parties filed with the court on 28 August (1) an exchange of correspondence between solicitors about the further disposition of the matter, and (2) an Agreed Statement of Facts ("ASF") covering relevant events which occurs on and between 19 April and 18 July 2013.

196 There were no amendments to pleadings, nor to the voluminous submissions that were made on the situation as it pertained on 30 April 2013.

197 The relevant later events to now note from the ASF, they having not yet been noted in this judgment, are:

12 June 2013 Interim Occupation Certificate 049/13 for Buildings A, B and C - Residential Part only - issued by John Morgan pursuant to the power in s. 109D of the EP&A Act, subject to the restrictions in s.109H of the EP&A Act.

25 June 2013 Strata Plan of Subdivision registered by Land & Property Management Authority including the registration on the common property of the public positive covenant whereby the Owner's Corporation covenants to grant all necessary access to the First Respondent to enable the First Respondent, its builder etc to carry out all works required by any orders made by the Land and Environment Court.

16 July 2013 to

14 August 2013 Settlements of 264 of the 268 residential units in the development.

18 July 2013 Commonwealth Bank as mortgagee repaid.

198 The relevant recent correspondence between solicitors opened on 21 August with O'Connor informing Gough that Council now seeks only Orders 1 to 11, 17 to 19, 21, and 22 from Option 1 in Exhibit C27.

199 Those suggested orders replicate prayers 3, 6, 9, 10, 12, 13, 15, 16, 18, 19, 21, and 30 of the TFAS (in [162] above), and add appropriate facultative orders (in 17-19) in respect of the requested Morrish works.

The final relief now sought

200 The "final" relief now sought by Council, is, therefore (with paragraph numbering taken from Option 1 in Exhibit C27, but with some emphasis and subheadings added):

Declarations regarding the 6 challenged CCs

1. A declaration that Construction Certificate No.208/10 dated 31 August 2010 ("CC1") issued by the Second Respondent with respect to the subject premises is void and of no effect.

2. A declaration that Construction Certificate No. 472/10 dated 23 December 2010 ("CC2") issued by the Second Respondent with respect to the subject premises is void and of no effect.

3. A declaration that Construction Certificate No.254/11 dated 21 October 2011 ("CC3") issued by the Second Respondent with respect to the subject premises is void and of no effect.

4. A declaration that the design and construction of the building at the subject premises as depicted in the plans and specifications referred to in construction certificate No. 044/12 dated 12 March 2012 ("CC4") are inconsistent with development consent No 306/05 granted on 13 November 2006 as modified, in breach of clause 145 of the Environmental Planning and Assessment Act 1979 (sic - the EPA Regulation 2000).

5. A declaration that Construction Certificate No.044/12 dated 12 March 2012 ("CC4") issued by the Second Respondent with respect to the subject premises is void and of no effect.

6. A declaration that the design and construction of the building at the subject premises as depicted in the plans and specifications referred to in construction certificate No. 109/12 dated 17 May 2012 ("CC5") are inconsistent with development consent No 306/05 granted on 13 November 2006 as modified, in breach of clause 145 of the Environmental Planning and Assessment Act 1979 (sic - the EPA Regulation 2000).

7. A declaration that Construction Certificate No.109/12 dated 17 May 2012 ("CC5") issued by the Second Respondent with respect to the subject premises is void and of no effect.

8. A declaration that the design and construction of the building at the subject premises as depicted in the plans and specifications referred to in construction certificate No. 185/12 dated 8 August 2012 ("CC6") are inconsistent with development consent No 306/05 granted on 13 November 2006 as modified, in breach of clause 145 of the Environmental Planning and Assessment Act 1979 (sic - the EPA Regulation 2000).

9. A declaration that Construction Certificate No.185/12 dated 8 August 2012 ("CC6") issued by the Second Respondent with respect to the subject premises is void and of no effect.

Declarations regarding breaches committed by the First Respondent (Ralan)

10. A declaration that the First Respondent has carried out work at the subject premises otherwise than in accordance with Development Consent No 306/05 granted on 13 November 2006 as modified in breach of s76A Environmental Planning and Assessment Act.

11. A declaration that the First Respondent commenced the erection of the buildings at the subject premises without a construction certificate for the building work having been issued by an accredited certifier in breach of s81A(2)(a) Environmental Planning and Assessment Act.

...

Orders against Ralan

17. orders that the First Respondent within 21 days submit to the Applicant plans incorporating the work described in the Schedule hereto ("the rectification plans");

18. orders the First Respondent to make an application to the Third Respondent for a Construction Certificate in respect of the rectification plans;

19. orders that the First Respondent carry out the work described in the Schedule hereto within the times specified in the Schedule;

...

Costs

21. orders the Respondents pay the Applicant's costs as agreed or assessed.

Liberty to apply

22. grants leave to the parties to apply on 3 days' notice for the purpose of working out these orders should it be necessary so to do.

201 The court, therefore, no longer need concern itself with Options 2 and 3 in Exhibit C27 at all, nor with the suggested orders 12 to 16, and 20 of Option 1, which dealt with:

(a) restraining "further work",

(b) declaring OCs dated 19 February 2013 and 15 March 2013 void and of no effect,

(c) restraining occupation,

(d) declaring Morgan's March appointment void and of no effect, and

(e) ordering Ralan to cause a by-law to be passed to enable the Morrish-rectification works to be carried out.

202 In addition to those abandoned claims, the "surviving" elements of Option 1 also represent the abandonment of the following prayers for relief in the TFAS (at [162] above):

• 2, 5, 8, 11, 14 and 17, being the "lack of design verification" claims in respect of all six CCs;
• 7, being the "inconsistent" claim in respect of CC3;
• 20, being, an alternative prayer to No 19 (now 10 in Option 1), focussing on work done otherwise than in accordance with the CCs (c.f. the DC in 19/10);
• 22-24, being prayers for specific restraining orders against the First and third respondents; and
• 29, seeking "an order that the First Respondent demolish or otherwise rectify any work carried out in breach of the Environmental Planning and Assessment Act".

203 Clearly, much of Council's original claim against the project has fallen away.

204 The relief now sought (as set out in [200] above) may be summarised as follows:

Substance of relief	Proposed Orders
(A) declarations that all 6 challenged CCs issued by Dix are void and of no effect	1-3, 5, 7, and 9
(B) declarations that CCs 4 to 6 depict a building which is "inconsistent with" that depicted in the DC	4, 6, and 8
(C) declarations that Ralan is in breach of the EPA Act	10 and 11
(D) orders that Ralan proceed to implement the "Morrish changes" ([194](4) above)	17, 18, 19 and 22
(E) an order that the respondents pay Council's costs	21

205 Gough responded, on 22 August, resisting declarations in accordance with draft orders 1 to 9, as they would serve no "proper and practical purpose": Great Lakes Council v Lani; Great Lakes Council v Lani and Lampo Pty Limited ("Lani") [2007] NSWLEC 681; (2007) 158 LGERA 1, at [16]-[25] (Tpp795-803). The civil proceedings cannot "be now used as a substitute for criminal prosecutions". A declaration will not remedy any past breach, and will have no substantive effect, now the OC has issued. The respondents, however, accept that some findings might be appropriate as part of the reasoning on the injunctive orders sought (item (D) in the above table).

206 O'Connor responded to that letter, on 26 August, asserting that orders 1 to 9 would indeed "serve a proper and practical purpose for the following reasons:

1. The commentary at paragraph 77 of our Submissions dealing with Occupation Certificates is apposite to the Construction Certificates (see Blue Mountains Conservation Society Inc V Delta Electricity (No 3) (2011) 81 NSWLR 407, at [67]-[74].

2. Council has always brought these proceedings for civil enforcement purposes and not for the purpose of punishment. It is for this reason it did not bring criminal prosecutions but brought these proceedings such that appropriate works could be ordered to be undertaken by the Respondents.

In respect of your submission that you do not object to the Court making findings to the extent necessary as part of the reasoning dealing with the remaining injunctive orders that submission is misplaced. It is misplaced in that the Second Respondent's Senior Counsel at page 868 line 24 to line 38 submitted that that cannot be done as invalidity only arises upon the making of the relevant declaration. If the Court was to proceed as suggested by you and then make orders requiring the Respondents to carry out works we would anticipate the Respondent in reliance upon Senior Counsel's submissions would appeal those orders as the Construction Certificates were not declared invalid."

(Par 77 of the Council's submissions asserted that Morgan was incapable of being appointed as a PCA, hence his purported OCs were "done without power").

207 O'Connor conceded that the grant of an OC on 12 June means that there is no utility in Council pursuing the declarations sought in draft orders 13, 14, and 16, namely, declarations that Morgan's two OCs, dated 19 February and 15 March 2013, are void and of no effect, and that the purported appointment of Morgan on 26 March 2013 is also void and of no effect.

208 However, Council would continue to seek findings on those matters, "as it has been fully argued and it is thus relevant to the question of costs ...".

209 Gough rejected that course, and suggested that all parties had acted reasonably in the proceedings until those aspects of the dispute were resolved, and that that circumstance would determine the court's position on costs, once the case is concluded.

210 O'Connor feared that Council's position on the costs of the full hearing on those issues, prior to the very late intervention of the BPB, would be prejudiced by the absence of such findings.

211 O'Connor argued also that, as the strata subdivision has been registered, and most residential sales have been settled, many discretionary matters should "fall away", nominating APOD 55(a) to (o).

212 Gough conceded in respect of APOD 55(a) to (e), (g), and (i) to (o), but added (q) to any such list. APOD 55 (q) states:

The Commonwealth Bank of Australia (CBA):

i. has advanced approximately $100,000,000 for the development which advance cannot be repaid unless the building is completed, strata subdivided and occupied; and

ii. is not in breach of the Act.

213 O'Connor pressed for deletion of APOD 55(f) and (h), which were as follows:

(f) In excess of $120,000,000 has been spent purchasing the land and having the building constructed;

...

(h) The building is complete with fixtures and fittings installed including:

i. Carpets,

ii. Kitchen Appliances,

iii. Laundry Appliances,

iv. Bathroom Fittings,

v. Air-Conditioning Units, And

vi. Fire Services and

vii. Units are painted.

214 For completeness, I also note here that the following sub-paragraphs of APOD 55 remain clearly pressed:

(p) The first respondent is not in breach of the Act;

...

(r) The CBA:

i. relied on the CC in advancing funding for the development,

ii. was entitled to the benefit of s109P; and

iii. is not in breach of the Act;

(s) There is no appreciable risk that any works have not been performed to a satisfactory standard;

(t) There is no appreciable risk that the Owner's Corporation of the strata plan yet to be created or the owners of lots in the development will be left with work not performed to a satisfactory standard;

(u) The council is only concerned with the external appearance of the building and CC's 1-3 relate to work below ground level and in respect CC4 the council has raised no matter of concern with respect to the external appearance of the building;

(v) The Council delayed in the taking of action:

Particulars

i. The external appearance of the building began to be readily visible from public places by at least beginning June 2012;

ii. The external appearance of the building was more and more visible with the passage of time thereafter as the upper levels were constructed and enclosed with the glazing system;

iii. Mr Olsen consciously decided to "wait and see" whether there would be any significant change to the building as it was constructed on and after 11 September 2012;

iv. Mr Olsen in discussion with the Deputy General Manager decided in September 2012 not to take action with the owner or the builder when they knew it would have been cheaper and easier to effect changes to the appearance of the building;

v. Mr Olsen decided to "wait and see" and went on holidays without appointing anyone else as responsible with respect to management of the concerns of the council with the external appearance of the building;

vi. Mr Olsen as the responsible officer within council formed the view that the development was proceeding in accordance with the consent granted by the Court;

vii. Mr Olsen and the council failed to take any steps or reasonable steps to be satisfied that the development consent drawings and the CC drawings were not inconsistent until sometime in December 2012 at all times appreciating that the first respondent was incurring significant expense as the building was being completed the building by the builder (sic);

viii. Mr Olsen formed the view that building was being built in accordance with the development consent on 23 October 2012 and 19 November 2012;

ix. Council never requested the work to stop until 20 December 2012 when it requested an undertaking to cease the installation of any more window panelling;

x. Council, when it did request work on window panelling stop, never offered an undertaking to pay the first respondent's damages if it was able to stop that work and it was later found that the builder was entitled to proceed with the work;

xi. Proceedings were not commenced until 12 February 2013 when the development was nearing completion;

xii. By the time the proceeding was commenced, the window panelling was complete save essentially for the need to place windows in the openings left for the crane fixings and to repair building defects;

xiii. The Council never sought interlocutory relief.

(w) The first respondent, the CBA and the purchasers of the lots within the proposed strata plan have done nothing wrong;

(x) If the relief sought by the Council was granted it would work such an injustice as to be disproportionate to the ends secured by enforcement, including an injustice to non-parties such as the persons contracted to buy the individual lots, the builder and the Commonwealth Bank.

(y) On 7 May 2013 the council approved of a s96 modification to strata subdivision consent of the development. On 8 May 2013 the Council issued a strata certificate for a strata plan of the development. The Council could only issue a strata certificate under the provisions of the Strata Schemes Freehold Development Act 1973 where a construction certificate was issued in respect of the building the subject of the proposed strata scheme. On 9 May 2013 the strata plan endorsed with the strata certificate was lodged with the LPMA. On 8 May 2013 the First Respondent paid $240,000 to the Council pursuant to the Terms of Settlement in Class 3 and 4 proceedings between the first respondent and the council. The First respondent says that if the Court in its discretion was to set aside any of the CCs 1-6 it unfairly exposes the First Respondent to the risk that the strata certificate may not be valid leaving the Council with the benefit of the cash payment of $240,000 and the payment of its costs.

The issues are finally closed

215 No further communication from Gough to O'Connor, after the latter's letter of 26 August 2013, has been put before the court, and I am content to seek now to conclude the matter on the basis that the documentation and the issues before the court are now closed.

216 I will now set out the sources of the evidence before the court (Section 'E', immediately below), and then the various statutory provisions which have played some part in the case (Section 'F', commencing at [226] below), before dealing with the competing cases put by the parties (Section 'G', from [243] below).

E: The Evidence

217 Many of the witnesses have already been introduced in this judgment, but for convenience, I now list the persons who provided affidavit evidence and/or reports:

218 Firstly, Council relied on the following witnesses:

Olsen ([19] above - affidavits dated 5 February 2013 (2), 22 March 2013, 27 March 2013, and 10 May 2013. See also Exhibits C6 and C7).

Byrnes, ([110] above - affidavit dated 13 February 2013).

Morrish ([122] above - see her reports to Council in Exhibit R4, her affidavit dated 22 March 2013, her CV in Exhibit C10, and her further material in Exhibit C13).

Silva ([159] above - affidavits dated 15 March 2013, and 21 March 2013. See also Exhibits C11 and C12).

Ezaz Biswas, the Senior Development Engineer for the Council (affidavit dated 15 March 2013).

Anthony Fulvio Sonego, Council's Community Engagement Projects Officer, with responsibilities including media, public relations, and Council's website (affidavit dated 16 April 2013).

219 Olsen, Byrnes (concurrent with Bowers), and Sonego also gave oral evidence. Biswas's evidence concerned stormwater works and the strata subdivision application (as to which, see [99] - [102]). Morrish, Silva and Biswas were not required for cross-examination.

220 While the court generally discourages the use by a party of more than one expert in a particular field of expertise, I allowed the Council to use, in this case, both Byrnes and Morrish, who work in the same field as Bowers.

221 Byrnes and Morrish were both engaged by Council, prior to the filing of the summons, Byrnes to compare in detail the DC plans and the CC plans, and Morrish to advise Council on design issues. Byrnes's affidavit was sworn and filed at an early stage of the proceedings.

222 Morrish provided reports to Council prior to the filing of the summons, and they were tendered (by the respondents - Exhibit R4) on day 3 of the hearing. However, it was not until after the respondents had filed points of defence and some evidence on discretion, that Council produced the affidavit from Morrish (dated 22 March 2013), which responded to the 18 March 2013 affidavit of Bowers.

223 After I allowed the "second" expert, and her affidavit, I took it that Byrnes's evidence went to liability, and Morrish's primarily to remedy.

224 In reply, Ralan relied on the following witnesses:

Nolan ([76] - affidavits dated 13 March 2013, 25 March 2013, and 18 April 2013).

Bowers ([22] above - affidavits dated 13 March 2013, and 18 March 2013. See also Exhibits R1 and R2).

O'Dwyer ([12] above - affidavits dated 13 March 2013, 25 March 2013, 27 March 2013 (2), 3 April 2013, 18 April 2013, and 13 May 2013. See also Exhibit C22, Exhibit R17, Exhibit R19, and Exhibit C5 tab 4).

Fraser Maxwell, a site manager employed by SNC, who took a series of photographs of the development on various dates (affidavit undated, but before the court on 26 March 2013).

Gough, solicitor for the respondents (affidavits dated 27 March 2013 and 9 May 2013).

Brandtman, ([86] above - affidavit dated 28 March 2013. See also his reports in Exhibits R15 and C24).

Manwaring, ([46] above - affidavit dated 19 April 2013)

Morgan ([3] and [50] above - affidavit dated 14 May 2013)

225 O'Dwyer, Nolan, Bowers (concurrent with Byrnes), Brandtman and Manwaring also gave oral evidence, but Maxwell, Gough and Morgan were not required for cross-examination.

F: Relevant Statutory Provisions

226 Before turning to review the evidence, submissions, and relevant authorities, it is necessary to set out, at unfortunate length, the statutory provisions which played some part in the case.

Judicial Review Proceedings

227 As already noted ([2] above), these are judicial review proceedings, brought pursuant to s 123 of the EPA Act, which provides (emphasis added):

123 Restraint etc of breaches of this Act

(1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.

(2) Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.

(3) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.

(4) (Repealed)

228 Section 124 relevantly provides:

124 Orders of the Court

(1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

(2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may:

(a) where the breach of this Act comprises a use of any building, work or land-restrain that use,

(b) where the breach of this Act comprises the erection of a building or the carrying out of a work-require the demolition or removal of that building or work, or

(c) where the breach of this Act has the effect of altering the condition or state of any building, work or land-require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.

...

229 Section 127 provides:

127 Proceedings for offences

...

(7) A person shall not be convicted of an offence against this Act or the regulations where the matter constituting the offence is, at the date upon which the conviction would, but for this subsection, be made:

(a) the subject of proceedings under section 123, which proceedings have not been concluded, or

(b) the subject of an order made under section 124.

(8) Nothing in subsection (7) precludes a conviction being made where the proceedings referred to in paragraph (a) of that subsection are concluded otherwise than by the making of an order under section 124.

The EPA Act - provisions regarding consents and modifications

230 The following further sections of the EPA Act have particular relevance to the matter, and need to be set out at regrettable length (with some emphasis added):

76A Development that needs consent

(1) General

If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a) such a consent has been obtained and is in force, and

(b) the development is carried out in accordance with the consent and the instrument.

...

80 Determination

...

(12) Effect of issuing construction certificate

If a consent authority or an accredited 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 96).

...

80A Imposition of conditions

....

(2) Ancillary aspects of development

A consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority.

...

(11) Prescribed conditions

A development consent is subject to such conditions as may be prescribed by the regulations.

81A Effects of development consents and commencement of development

(1) Erection of buildings

A development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the development application, subject to section 109M.

Note. Section 109M prohibits the occupation or use of a new building unless an occupation certificate has been issued for the building.

(2) The erection of a building in accordance with a development consent must not be commenced until:

(a) a construction certificate for the building work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited certifier, and

(b) the person having the benefit of the development consent has:

(i) appointed a principal certifying authority for the building work, and

(ii) notified the principal certifying authority that the person will carry out the building work as an owner-builder, if that is the case, and

(b1) the principal certifying authority has, no later than 2 days before the building work commences:

(i) notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and

(ii) notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and

(b2) the person having the benefit of the development consent, if not carrying out the work as an owner-builder, has:

(i) appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved, and

(ii) notified the principal certifying authority of any such appointment, and

(iii) unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and

(c) the person having the benefit of the development consent has given at least 2 days' notice to the council, and the principal certifying authority if that is not the council, of the person's intention to commence the erection of the building.

...

(5) Regulations may provide for the issue of certificates

The regulations may make provision concerning the issue of certificates for the erection of buildings and the subdivision of land.

...

(7) Penalty for contravention of subsection (2) or (4)

The maximum penalty that may be imposed for a contravention of subsection (2) or (4) is 1,000 penalty units.

...

96 Modification of consents-generally

...

(8) Modifications by the Court

The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A) (c) or subsection (2) (b) and (c) are to be exercised by the relevant consent authority and not the Court.

...

101 Validity of development consents and complying development certificates

If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.

...

The EPA Act - certification provisions (Part 4A)

231 The provisions in Part 4A of the EPA Act, inserted in the legislation in 1997, are of particular significance in this case, and also need to be set out in regrettable detail.

232 Part 4A is headed "Certification of Development", and Division 1, headed "Certification of work and other matters", includes the following sections (again some emphasis added):

109C Part 4A certificates

(1) The following certificates (known collectively as Part 4A certificates) may be issued for the purposes of this Part:

(a) a compliance certificate, ...

(b) a construction certificate, being a certificate to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in section 81A (5),

(c) an occupation certificate, being a certificate that authorises:

(i) the occupation and use of a new building, or

(ii) a change of building use for an existing building,

(d) a subdivision certificate, being a certificate that authorises the registration of a plan of subdivision under Division 3 of Part 23 of the Conveyancing Act 1919.

(1A) A single compliance certificate may deal with any number of matters, whether of the same or of a different kind.

(2) An occupation certificate:

(a) may be an interim certificate or a final certificate, and

(b) may be issued for the whole or any part of a building.

(3) If the regulations so provide, a construction certificate may be issued subject to conditions.

...

109D Certifying authorities

(1) Subject to subsections (2) and (3), the following kinds of Part 4A certificate may be issued by the following kinds of persons:

(a) a compliance certificate ...

(b) a construction certificate may be issued by a consent authority, the council or an accredited certifier,

(c) an occupation certificate may be issued by a consent authority, the council or an accredited certifier,

...

(2) An occupation certificate must not be issued to authorise a person to commence occupation or use of a new building except by the principal certifying authority appointed for the erection of the building.

...

109E Principal certifying authorities

(1) The person having the benefit of a development consent or complying development certificate for development:

(a) is to appoint a principal certifying authority in respect of building work involved in the development and a principal certifying authority in respect of subdivision work involved in the development, and

(b) may appoint only the consent authority, the council or an accredited certifier as the principal certifying authority for the building work or subdivision work, and

(c) may appoint the same principal certifying authority for both types of work or different certifying authorities.

...

(3) A principal certifying authority for building work or subdivision work to be carried out on a site is required to be satisfied:

(a) that a construction certificate or complying development certificate has been issued for such of the building work or subdivision work as requires development consent and over which the principal certifying authority has control, before the work commences on the site, and

(b) that the principal contractor for the work is the holder of the appropriate licence and is covered by the appropriate insurance, in each case if required by the Home Building Act 1989, before any residential building work over which the principal certifying authority has control commences on the site, unless the work is to be carried out by an owner-builder, and

(c) that the owner-builder is the holder of any owner-builder permit required under the Home Building Act 1989, before an owner-builder commences on the site any residential building work over which the principal certifying authority has control, and

(d) that building work or subdivision work on the site has been inspected by the principal certifying authority or another certifying authority on such occasions (if any) as are prescribed by the regulations and on such other occasions as may be required by the principal certifying authority, before the principal certifying authority issues an occupation certificate or subdivision certificate for the building or work, and

(e) that any preconditions required by a development consent or complying development certificate to be met for the work before the issue of an occupation certificate or subdivision certificate have been met, before the principal certifying authority issues the occupation certificate or subdivision certificate.

(4) A principal certifying authority must also comply with such other requirements of a like or different nature as may be imposed on principal certifying authorities by the regulations.

Note. Section 81A prohibits the commencement of building work or subdivision work unless the consent authority has been notified of the appointment of a principal certifying authority for the work. Section 109D (2) prohibits the issue of an occupation certificate authorising the occupation and use of a new building except by the principal certifying authority appointed for the erection of the building. Section 109D (3) prohibits the issue of a subdivision certificate for a subdivision involving subdivision work except by the principal certifying authority appointed for the carrying out of the subdivision.

109EA Replacement of principal certifying authorities

(1) A person may not be appointed to replace another person as the principal certifying authority for development unless:

(a) the Building Professionals Board so approves in writing and the relevant council and consent authority are notified before the replacement occurs, or

(b) the current principal certifying authority, the proposed principal certifying authority and a person who is eligible to appoint a principal certifying authority for the development agree.

(2) An application to the Building Professionals Board for approval or a notification under subsection (1) is to be accompanied by the fee (if any) prescribed by the regulations under the Building Professionals Act 2005 and is to be in a form approved by the Board.

(3) If the Building Professionals Board approves the appointment of the relevant council to replace another person as the principal certifying authority under subsection (1) (a), the council must accept that appointment.

109F Restriction on issue of construction certificates

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

(a) the requirements of the regulations referred to in section 81A (5) have been complied with, and

(b) any long service levy payable under section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or, where such a levy is payable by instalments, the first instalment of the levy) has been paid.

(1A) A construction certificate has no effect if it is issued after the building work or subdivision work to which it relates is physically commenced on the land to which the relevant development consent applies.

109G Restriction on issue of compliance certificates

A compliance certificate of the kind referred to in section 109C (1) (a) (i) or (ii) must not be issued for any building work or subdivision work unless a development consent or complying development certificate is in force with respect to the building or subdivision to which the work relates.

109H Restrictions on issue of occupation certificates

(1) There are two kinds of occupation certificates, as follows:

(a) an interim occupation certificate that authorises a person to commence occupation or use of a partially completed new building, or to commence a new use of part of a building resulting from a change of building use for an existing building,

(b) a final occupation certificate that authorises a person to commence occupation or use of a new building, or to commence a new use of a building resulting from a change of building use for an existing building.

It is not necessary for an interim occupation certificate to be issued before a final occupation certificate is issued with respect to the same building.

(2) An occupation certificate must not be issued unless any preconditions to the issue of the certificate that are specified in a development consent or complying development certificate, or any requirements of a planning agreement referred to in section 93F that, by its terms, are required to be complied with before such a certificate is issued, have been met.

(3) An interim occupation certificate must not be issued to authorise a person to commence to occupy or use a partially completed new building unless:

(a) a development consent or complying development certificate is in force with respect to the building, and

(b) in the case of a building erected pursuant to a development consent but not a complying development certificate, a construction certificate has been issued with respect to the plans and specifications for the building, and

(c) the partially completed building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and

(d) such other requirements as are required by the regulations to be complied with before such a certificate may be issued have been complied with.

(4) An interim occupation certificate must not be issued to authorise a person to commence a new use of part of a building resulting from a change of building use for an existing building unless:

(a) a development consent or complying development certificate is in force with respect to the change of building use, and

(b) the part of the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and

(c) such other requirements as are required by the regulations to be complied with before such a certificate may be issued have been complied with.

...

109I Effect of occupation certificate on earlier occupation certificates

(1) A final occupation certificate for the whole of a building revokes any earlier occupation certificate for that building.

(2) An interim occupation certificate for a part of a building additional to the part or parts in respect of which an earlier interim occupation certificate is in force:

(a) revokes the earlier interim occupation certificate, and

(b) applies to the part in respect of which it is issued and to the part or parts in respect of which the earlier interim occupation certificate was in force.

(3) An occupation certificate (whether interim or final) for a part of a building revokes any earlier occupation certificate to the extent to which it applies to that part.

...

109L Accredited certifiers may issue notices requiring work to be carried out

(1) An accredited certifier who is the principal certifying authority for any development may, by notice served on a person on whom an order under section 121B may be served, direct that person to do anything that the consent authority could require that person to do by means of such an order.

(2) A notice under this section has the same effect as a notice referred to in section 121H (1), and the provisions of Division 2A of Part 6 have effect accordingly:

(a) subject to the accredited certifier being:

(i) present when representations are made under section 121I, and

(ii) entitled to make representations to the consent authority or nominated person to whom the representations under section 121I are made, and

(iii) entitled to have the representations made by the accredited certifier heard and considered under section 121J in the same way as the representations under section 121I are heard and considered, and

(b) subject to such other modifications as the regulations may prescribe.

(3) Within 2 working days after the date on which an accredited certifier serves a notice under this section, the accredited certifier must send copies of the notice:

(a) to the council, and

(b) if the development is the subject of development consent given by a consent authority other than the council, to the consent authority, and

(c) if the person on whom the notice is served is not the owner of the land on which the development is being carried out, to the owner of the land.

109M Occupation and use of new building requires occupation certificate

(1) A person must not commence occupation or use of the whole or any part of a new building (within the meaning of section 109H) unless an occupation certificate has been issued in relation to the building or part.

Maximum penalty:

(a) in the case of a class 1a or class 10 building, as referred to in the Building Code of Australia-5 penalty units, or

(b) in the case of any other building-1,000 penalty units.

...

109P Satisfaction as to compliance with conditions precedent to the issue of certificates

(1) A person who exercises functions under this Act in reliance on a Part 4A certificate or a complying development certificate is entitled to assume:

(a) that the certificate has been duly issued, and

(b) that all conditions precedent to the issuing of the certificate have been duly complied with, and

(c) that all things that are stated in the certificate as existing or having been done do exist or have been done,

and is not liable for any loss or damage arising from any matter in respect of which the certificate has been issued.

(The term "functions", as used in s 109P, is defined in s4 of the Act as including "powers, authorities and duties")

109Q Regulations under Part 4A

(1) In addition to any other matters for or with respect to which regulations may be made for the purposes of this Part, the regulations may make provision for or with respect to the following:

(a) the documents to be provided to, and the matters to be notified to, a consent authority, council or certifying authority for the purposes of this Part,

(b) the records to be kept by certifying authorities under this Part,

(c) applications for Part 4A certificates,

(d) the form and content of Part 4A certificates,

(e) the manner in which complaints in respect of development are to be dealt with by certifying authorities.

(f) exempting classes of temporary structures from requirements relating to construction certificates or occupation certificates.

(2) In particular, the regulations may authorise a consent authority or council to impose a fee with respect to any Part 4A certificate that is lodged with it, whether pursuant to a requirement of this Act or the regulations or otherwise.

...

The EPA Regulation

233 The (EPA) Regulation relevantly provides (again set out in regrettable detail, with some emphasis added):

50 How must a development application be made?

...

(1A) A development application that relates to a residential flat development, and that is made on or after 1 December 2003, must be accompanied by a design verification from a qualified designer, being a statement in which the qualified designer verifies:

(a) that he or she designed, or directed the design, of the residential flat development, and

(b) that the design quality principles set out in Part 2 of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development are achieved for the residential flat development.

...

98 Compliance with Building Code of Australia and insurance requirements under the Home Building Act 1989

(1) For the purposes of section 80A (11) of the Act, the following conditions are prescribed in relation to a development consent for development that involves any building work:

(a) that the work must be carried out in accordance with the requirements of the Building Code of Australia,

(b) in the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract of insurance is in force before any building work authorised to be carried out by the consent commences.

(1A) For the purposes of section 80A (11) of the Act, it is prescribed as a condition of a development consent for a temporary structure that is used as an entertainment venue, that the temporary structure must comply with Part B1 and NSW Part H102 of Volume One of the Building Code of Australia.

...

139 Applications for construction certificates

(1) An application for a construction certificate:

(a) must contain the information, and be accompanied by the documents, specified in Part 3 of Schedule 1, and

(b) if the certifying authority so requires, must be in the form approved by that authority, and

(c) must be delivered by hand, sent by post or transmitted electronically to the principal office of the certifying authority, but may not be sent by facsimile transmission.

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

(2) Immediately after it receives an application for a construction certificate, the certifying authority must endorse the application with the date of its receipt.

139A Withdrawal of application for construction certificate

(1) An application for a construction certificate may be withdrawn at any time prior to its determination by service on the certifying authority to which it was made of a notice to that effect signed by the applicant.

...

140 Certifying authority may require additional information

(1) A certifying authority may require the applicant for a construction certificate to give the certifying authority any additional information concerning the proposed building or subdivision work or a planning agreement that is essential to the certifying authority's proper consideration of the application.

(2) Nothing in this clause affects the certifying authority's duty to determine an application for a construction certificate.

(3) A planning authority that is a party to a planning agreement may, at the request of an applicant for a construction certificate that is made for the purposes of obtaining information required under this clause, certify that specified requirements of the agreement have been complied with.

...

142 Procedure for determining application for construction certificate

(1) The determination of an application for a construction certificate must be in writing and must contain the following information:

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

(b) whether the application has been determined:

(i) by approval, or

(ii) by refusal, and

(c) if the application has been determined by refusal:

(i) the reasons for the refusal, and

(ii) if the certifying authority is a consent authority, of the applicant's right of appeal under the Act against the refusal,

(d) if a construction certificate has been issued subject to conditions of the kind referred to in clause 187 or 188:

(i) the reasons for the conditions, and

(ii) if the certifying authority is a consent authority, of the applicant's right of appeal under the Act against any such conditions.

(2) The certifying authority must cause notice of its determination to be given to the consent authority, and to the council, by forwarding to it, within 2 days after the date of the determination, copies of:

(a) the determination, together with the application to which it relates, and

(b) any construction certificate issued as a result of the determination, and

(c) any plans and specifications in relation to which such a construction certificate has been issued, and

(d) any fire safety schedule or fire link conversion schedule attached to such a construction certificate, and

(e) any other documents that were lodged with the application for the certificate (such as any relevant decision on an objection under clause 187 or 188) or given to the certifying authority under clause 140, and

(f) the record of any inspection made for the purposes of clause 143B in relation to the issue of the construction certificate.

Note. See also clause 168 which requires a fire safety schedule to be attached to a construction certificate when it is issued.

(2A) A copy of a record of inspection referred to in subclause (2) (f) need not be given to a consent authority or council that carried out the inspection.

(3) In this Part, a reference to the issuing of a construction certificate includes a reference to the endorsement of the construction certificate on any relevant plans and specifications, as referred to in section 109C (1) (b) of the Act.

...

143A Special requirements for construction certificates for residential flat development

(1) This clause applies to residential flat development for which the development application was required to be accompanied by a design verification from a qualified designer under clause 50 (1A).

(2) A certifying authority must not issue a construction certificate for residential flat development unless the certifying authority has received a design verification from a qualified designer, being a statement in which the qualified designer verifies that the plans and specifications achieve or improve the design quality of the development for which development consent was granted, having regard to the design quality principles set out in Part 2 of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development.

(3) If the development application referred to in subclause (1) was also required to be accompanied by a BASIX certificate with respect to any building, the design quality principles referred to in subclause (2) need not be verified to the extent to which they aim:

(a) to reduce consumption of mains-supplied potable water, or reduce emissions of greenhouse gases, in the use of the building or in the use of the land on which the building is situated, or

(b) to improve the thermal performance of the building.

...

(The term "qualified designer", as used in cl 143A, is defined in cl 3 of the Regulation as meaning "a person registered as an architect in accordance with the Architects Act 2003". That definition has attached to it a "Note" which says: "A building designer may be able to be registered as an architect in accordance with the Architects Act 2003 even though the person may have no formal qualifications in architecture". Bowers, Brynes and Morrish are all registered architects).

144A Compliance certificate required for certain fire safety aspects of building work

(1) A certifying authority must not issue a construction certificate for building work that involves an alternative solution under the Building Code of Australia in respect of a fire safety requirement unless the certifying authority has obtained or been provided with either or both of the following issued by a fire safety engineer:

(a) a compliance certificate referred to in section 109C (1) (a) (v) of the Act that certifies that the alternative solution complies with the relevant performance requirements of the Building Code of Australia,

(b) a written report that includes a statement that the alternative solution complies with the relevant performance requirements of the Building Code of Australia.

...

145 Compliance with development consent and Building Code of Australia

(1) A certifying authority must not issue a construction certificate for building work unless:

(a1) the plans and specifications for the building include such matters as each relevant BASIX certificate requires, and

(a) 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, and

(b) the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the construction certificate was made).

(2) A certifying authority must not issue a construction certificate for subdivision work unless the design and construction of the work (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.

(3) Subclause (1) (b) does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4).

...

147 Form of construction certificate

(1) A construction certificate must contain the following:

(a) the identity of the certifying authority that issued it, including, in a case where the certifying authority is an accredited body corporate, the identity of the individual who issued the certificate on behalf of the body corporate,

(b) if the certifying authority is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the individual who issued the certificate on behalf of the body corporate,

(b1) if the certifying authority is an accredited certifier who is an individual, the signature of the accredited certifier,

(b2) if an individual issued the certificate on behalf of the certifying authority, the signature of the individual who issued the certificate,

(c) the registered number and date of issue of any relevant development consent,

(d) the date of the certificate,

(e) a statement to the effect that work completed in accordance with documentation accompanying the application for the certificate (with such modifications verified by the certifying authority as may be shown on that documentation) will comply with the requirements of this Regulation as are referred to in section 81A (5) of the Act,

(f) the classification (in accordance with the Building Code of Australia) of the building to which the certificate relates.

(1A) A construction certificate may indicate different classifications for different parts of the same building.

(2) A construction certificate for a building must be accompanied by a fire safety schedule for the building.

(3) Subclause (2) does not apply to:

(a) a class 1a or class 10 building within the meaning of clause 167, or

(b) a construction certificate that relates only to fire link conversion.

Note. The documents that must be issued with and accompany a construction certificate that relates only to fire link conversion are set out in clause 168A.

...

149 Applications for occupation certificates

(1) An application for an occupation certificate must contain the following information:

(a) the name and address of the applicant,

(b) a description of the building to which the application relates, including the existing and new classifications of the building under the Building Code of Australia, as identified by the development consent,

(c) the address, and formal particulars of title, of the land on which the building to which the application relates is situated,

(d) the type of occupation certificate applied for (that is, interim or final),

(e) a list of the documents accompanying the application,

and, if the certifying authority so requires, must be in the form approved by that authority.

(2) The application must be accompanied by the following documents:

(a) a copy of the relevant development consent or complying development certificate,

(b) a copy of any relevant construction certificate,

(c) a copy of any relevant fire safety certificate,

(d) a copy of any relevant compliance certificate.

(2A) In the case of an application with respect to development the subject of a condition requiring commitments listed in a BASIX certificate or in BASIX certificates to be fulfilled, the application must also be accompanied by a copy of each relevant BASIX certificate for the development.

(2B) The application may only be made by a person who is eligible to appoint a principal certifying authority for the relevant development.

(3) The application must be delivered by hand, sent by post or transmitted electronically to the principal office of the certifying authority, but may not be sent by facsimile transmission.

(4) Immediately after it receives an application for an occupation certificate, the certifying authority must endorse the application with the date of its receipt.

...

154 Health, safety, compliance with development consent and other issues: section 109H

(1) For the purposes of section 109H (3) (d) and (4) (c) of the Act, an interim occupation certificate authorising a person:

(a) to commence occupation or use of a partially completed new building, or

(b) to commence a change of building for use for part of an existing building,

must not be issued unless the building will not constitute a hazard to the health or safety of the occupants of the building.

(1A) For the purposes of section 109H (5) (d) of the Act, a final occupation certificate authorising a person to commence occupation or use of a temporary structure as an entertainment venue must not be issued unless:

(a) the certifying authority has inspected the temporary structure, and

(b) the temporary structure is suitable for its proposed use as an entertainment venue, including for the number of persons proposed to occupy or use the temporary structure.

(1B) An occupation certificate authorising a person to commence occupation or use of a new building, or a partially completed new building, must not be issued unless the design and construction of the new building, or any part of the new building that is completed, are not inconsistent with the development consent in force with respect to the new building. This subclause applies only if the development consent (excluding any construction certificate forming part of the consent) was issued on or after 1 March 2013.

...

154A Special requirements for occupation certificates for residential flat development

(1) This clause applies to residential flat development for which the development application was required to be accompanied by a design verification from a qualified designer under clause 50 (1A).

(2) A certifying authority must not issue an occupation certificate to authorise a person to commence occupation or use of residential flat development unless the certifying authority has received a design verification from a qualified designer, being a statement in which the qualified designer verifies that the residential flat development achieves the design quality of the development as shown in the plans and specifications in respect of which the construction certificate was issued, having regard to the design quality principles set out in Part 2 of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development.

...

234 Part 3 of Schedule 1 to the Regulation (to which cl 139, quoted above, refers), is entitled "Forms", and provides (in cl 5) in respect of any application for a CC (some emphasis added):

An application for a construction certificate must contain the following information:

(a) the name and address of the applicant,

(b) a description of the building work or subdivision work to be carried out,

(c) the address, and formal particulars of title, of the land on which the building work or subdivision work is to be carried out,

(d) in the case of building work, the class of the building under the Building Code of Australia,

(e) the registered number and date of issue of the relevant development consent, if consent has already been granted for the proposed development,

(f) the estimated cost of the development,

(g) (Repealed)

(h) a list of the documents accompanying the application.

235 Clause 6 (of Schedule 1) then lists the documents which must accompany any application for a CC (see [18]-[20] above).

236 The provisions of the EPA Act and the Regulation speak for themselves, and must be construed by the court according to the established principles, but some of them have been the subject of departmental circulars and fact sheets (Exhibit C26).

237 Just as those circulars etc. needed to refer to other legislation and instruments, I will now shortly mention some other documents and provisions which were raised at the hearing of this matter.

SEPP 65

238 Part 2 of SEPP 65 (see [124] above) sets out a series of ten "design quality principles", to "provide a guide to achieving good design and the means of evaluating the merit of proposed solutions". They cover (1) context, (2) scale, (3) built form, (4) density, (5) resource, energy and water efficiency, (6) landscape, (7) amenity, (8) safety and security, (9) social dimensions and housing affordability, and (10) aesthetics.

Building Professionals Act

239 The Building Professionals Act 2005 was enacted following the insertion of Part 4A into the EPA Act, in the major amending bill introduced in 1997.

240 It provides for a scheme of accreditation and for the regulation of certifiers, and establishes the BPB ([49] above), comprising 3 to 8 members (s 76). The Board's initial task (s 4) was to prepare an accreditation scheme for appropriate building professionals to act as certifiers under the EPA Act and Regulation, then (ss 5ff) to issue the relevant credentials on an annual basis, review the scheme, and keep a register of "accreditation holders", and then to deal with any complaints and requests for cancellation of accreditation. Some of the Board's decisions (s 18) are reviewable by the Administrative Decisions Tribunal. Disciplinary proceedings and complaints are dealt with in Parts 3 and 4 (ss 19ff).

Relevant Strata legislation

241 The Strata Schemes (Freehold Development) Act 1973 relevantly provides (again emphasis added):

37 Approval of proposed strata plans, certain subdivisions and conversions of lots into common property

(1) Subject to this Division, a local council must, on application made to it for a strata certificate in respect of a proposed strata plan that does not include a development lot or lots, issue to the applicant a strata certificate in respect of that plan if:

(a) ...

(b) the requirements of subparagraphs (i), (ii) and (iii) or the requirements of subparagraphs (iv), (v), (vi), (vii) and (viii) are satisfied:

(i) a construction certificate has been issued under the Environmental Planning and Assessment Act 1979 with respect to the erection of any building containing any proposed lots to which the strata plan relates,

(ii) the proposed lots illustrated by that plan substantially correspond with parts of any such building shown in the building plans accompanying the construction certificate and designated in those building plans as being intended for separate occupation,

(iii) any such building was completed not more than 12 months, or such longer period as the local council may in any particular case fix, before the application for the strata certificate under this subsection was made to the certifier,

(iv) separate occupation of the proposed lots illustrated by the strata plan will not contravene the provisions of the Environmental Planning and Assessment Act 1979 or of any environmental planning instrument within the meaning of that Act,

(v) any consent required under that Act or instrument has been given in relation to the separate occupation of the proposed lots illustrated by that plan,

(vi) having regard to the circumstances of the case and the public interest, the local council is satisfied that the subdivision to which the plan relates will not interfere with the existing or likely future amenity of the neighbourhood,

(vii) the land proposed to be subdivided is not the subject of any outstanding order, requirement or notice of a kind referred to in, or given under, a provision referred to in subsection (1B),

(viii) if the local council has made an order of the kind referred to in Order No 6 in the Table to section 121B of the Environmental Planning and Assessment Act 1979 in relation to the land proposed to be subdivided-the order has been complied with or an appeal against the order has been made under section 121ZK of that Act and the Land and Environment Court has refused to confirm the order.

...

37A Approvals by accredited certifiers

(1) An accredited certifier may issue a strata certificate in respect of a proposed strata plan, proposed strata plan of subdivision or proposed notice of conversion in accordance with this section.

(2) An accredited certifier must issue a strata certificate in respect of a proposed strata plan that does not include a development lot or lots if:

(a) there is a relevant development consent in force, and

(b) all conditions of the development consent that, by its terms, are required to be complied with before a strata certificate may be issued have been complied with, and

(c) ...

(d) the requirements of subparagraphs (i), (ii) and (iii) or the requirements of subparagraphs (iv), (v), (vi) and (vii) are satisfied:

(i) a construction certificate has been issued under the Environmental Planning and Assessment Act 1979 with respect to the erection of any building containing any proposed lots to which the strata plan relates,

(ii) the proposed lots illustrated by that plan substantially correspond with parts of any such building shown in the building plans accompanying the construction certificate and designated in those building plans as being intended for separate occupation,

(iii) any such building was completed not more than 12 months, or such longer period as the relevant local council may in any particular case fix, before the application for the strata certificate under this subsection was made to the certifier,

(iv) separate occupation of the proposed lots illustrated by the strata plan will not contravene the provisions of the Environmental Planning and Assessment Act 1979 or of any environmental planning instrument within the meaning of that Act,

(v) any consent required under that Act or instrument has been given in relation to the separate occupation of the proposed lots illustrated by that plan,

(vi) the land proposed to be subdivided is not the subject of any outstanding order, requirement or notice of a kind referred to in, or given under, a provision referred to in section 37 (1B),

(vii) if the relevant local council has made an order of the kind referred to in Order No 6 in the Table to section 121B of the Environmental Planning and Assessment Act 1979 in relation to the land proposed to be subdivided-the order has been complied with or an appeal against the order has been made under section 121ZK of that Act and the Land and Environment Court has refused to confirm the order.

(3) An accredited certifier must issue a strata certificate in respect of a proposed strata plan that includes a development lot or development lots, or in respect of a proposed strata plan of subdivision of a development lot, if:

(a) the requirements of subsection (2) (a)-(d) are satisfied, and

(b) the plan and any building containing proposed lots to which the plan relates:

(i) satisfy any applicable development consent conditions, and

(ii) give effect to the stage of the strata development contract to which they relate.

...

(7) Despite any other provision of this section, a strata certificate must not be issued by an accredited certifier unless all regulations with respect to the provision of such certificates have been complied with.

Conveyancing (Sale of Land) Regulation 2010

242 Reference was made during argument to Item 2 of Schedule 2 to the above regulations, which provides as follows:

2 Strata units bought off the plan

(1) The vendor must serve, at least 14 days before completion, an occupation certificate within the meaning of the Environmental Planning and Assessment Act 1979 (being an interim occupation certificate or a final occupation certificate) in relation to the building, or part of the building, of which the lot and access to the lot form part.

(2) For the purposes of this clause, the part of a building comprising access to a lot is any part of the building reasonably necessary for access to the lot.

(3) The purchaser does not have to complete earlier than 14 days after service of the certificate.

G: Consideration

Council is an appropriate applicant

243 When a Council brings proceedings under s 123 of the EPA Act, it is in a slightly different position from a private individual taking advantage of the Act's "open standing" provisions.

244 A Council, in the absence of evidence to the contrary, represents "the public interest ... in its attempted vindication of its environmental planning law", and has no obligation "to prove public detriment or injury resulting from the infraction ...". The courts have been slower to deny relief on discretionary grounds where a Council (or the Attorney General) is plaintiff. See North Sydney Municipal Council v Ekstein (1985) 54 LGRA 440, at 450; and Woolworths Ltd v The Warehouse Group (Australia) Pty Ltd [2003] NSWLEC 31, (2003) 123 LGERA 341, at [20].

245 The Council, in the final presentation of its claims in this case, seeks much less relief than it did originally, but there can be no doubt about the threshold issue of Council's entitlement to bring the proceedings.

What does the evidence in the present case show?

246 O'Dwyer is, essentially, an investor who admits he is "not a very technical person from a construction point of view" (Tp591, LL48-9). As the principal of a group of development companies, he is generally aware of their obligations under the EPA Act and associated regulations (Tp613, LL24-43). He engages staff (Tp600, L15) and contractors whom he trusts, especially Nolan (Tp603, LL18ff), and, in a hands-off way, he backs them, and relies on them, but he would wish to be made aware of any Council concerns (Tp620, LL1-4).

247 Ralan does not deny its involvement in "development" of the Burwood project, but does deny any breach of the EPA Act or the DC (Tp558), and O'Dwyer (Tp632, L39) does not believe that he or his company has "done anything wrong".

248 Nolan has a more hands-on, low overhead style (Tp689, LL28-35), but he also relies on SNC's trusted staff, such as Robert Severino.

249 The Council complains in the present case that O'Dwyer "should have done more as the developer" (Tp617, LL9-10), and had plenty of scope (presumably under the contract in Exhibit R10 - see [76] above) to intervene appropriately in the project, to ensure obedience to the law.

250 Under the contract between Ralan and SNC, SNC (as the Contractor) is given "access to and possession of" the site (by clause 27.1), and is responsible for "the care of the whole of the work" throughout the life of the project (16.1), subject to some responsibilities imposed on the Principal (Ralan) (16.3). The Principal may access the site, and "the work", "for any purpose", including doing work itself, after giving reasonable notice to the Contractor, and provided it does not impede the Contractor (27.2).

251 Bowers was retained by SNC to do the "design", SNC having been contracted by Ralan to build the project on a "design and construct" basis. By virtue of its contract with Bowers, SNC may possibly be held responsible for any breach by Bowers, but neither of them is a party against whom the Council has made a claim for breach or relief.

252 By virtue of its contract with SNC, Ralan might likewise be held responsible for any breach by SNC. Bowers says that he developed his design to the best of his understanding of the DC ([83] - [84] above); that he presented it to Council, RailCorp, STA, etc. and answered their inquiries; that he made any s 96 modification applications they considered necessary; and that he took notice of any relevant legal advice (Tp803, and subs pars 36-39).

253 As the person responsible for the "design" component of the SNC building project, Bowers determined that changes ought to be made to the specifications which were part of the DC, and he took responsibility for fully apprising Dix, as the PCA for the project, of those desired changes. Bowers had no control over Dix in his adjudication of those changes.

254 In order for the changes to then proceed, it was necessary for Dix to certify that, if the project were built in accordance with the documentation so provided to him, it would satisfy the DC, as in being "not inconsistent" with it, and without any need for it to be formally modified, provided that he was in receipt of an adequate design verification. Design verification was provided by Bowers, who satisfied the court that he is appropriately qualified to do so, and each CC, by virtue of s 80(12) took effect as part of the consent.

255 Bowers told the court, as did Nolan, that, at Bowers's insistence, SNC built the project in strict accordance with Dix's CCs, which sanctioned the changes, including the deletion of the louvres/fins, and the adoption of fenestration which produced a colour presentation not identical to that in the photographs of what the DC was expected to produce. Mr Tomasetti submits (par 37) that Bowers, and no doubt also Nolan/SNC, acted "reasonably" throughout.

256 Council's expert, Byrnes, agreed with Bowers that designs "evolve" between DC and CC, and that the DC plans in this case displayed deficiencies and inconsistencies (Tp815, LL6-8). He also confirmed (Tp310, L17-p311, L6) that a project architect would "generally" give the builder the "CC drawings", but not the DC plans, other than perhaps to explain changes made by the CC documentation. The architect would "normally ... rely on getting on with the CC documentation... You don't expect the builder to be burrowing back into the DA ...", but the project architect would commence with the DC "in formulating the material for the CC", and would draw to the builder's attention any "deviation" from it.

What relief does Council now seek, and against whom?

257 As summarised in [204] above, the substance of the relief Council finally seeks is:

(A) declarations that all 6 challenged CCs issued by Dix are void and of no effect

(B) declarations that CCs 4 to 6 depict a building which is "inconsistent with" that depicted in the DC

(C) declarations that Ralan is in breach of the EPA Act

(D) orders that Ralan proceed to implement the "Morrish changes" ([194](4) above)

(E) an order that the respondents pay Council's costs.

258 Leaving costs questions aside ((E)), council seeks eleven declarations (in (A), (B) and (C)). No relief at all is sought now against Morgan, and no substantive consequential orders are sought against Dix.

259 Orders are, however, sought (in (D)) that Ralan take the remedial actions recommended by Morrish, which require the replacement of façade glazing materials, and addition of "vertical louvre blades" (or "fins") to some façades.

260 No relief at all can be granted by the court in the absence of proven (or apprehended) breach(es) of the law, and relief can be ordered against only parties who are responsible at law for any such breach (s 124(1)). See Lani ([205] above). Such responsibility can flow from direct activity, or it might be vicarious in character.

261 In issuing the six challenged CCs, Dix may, on proper evidence, and adequate grounds, be found to have breached the Act.

262 However, he was not an agent of, or contractor to, SNC or Ralan, nor did he "carry out development" of the subject site. He is an independent accredited person, appointed to his task as PCA pursuant to a non-planning statute, and as such he is amenable to discipline by the BPB for any "breaches", and possibly to some action for damages. With no orders now being sought against Dix, the question has properly been raised as to whether there is any utility in the court's making the nine declarations involving his work ((A) and (B)).

263 If the court were concerned, on merits grounds, about the colour of the façade, or the absence of louvres/fins, in the absence of its being proven that they were in breach of the DC, the court could not order Ralan to do rectification works, unless it found Ralan to be responsible for that breach, either by itself, or vicariously through SNC, Bowers, or Dix. O'Dwyer himself is not a party, and his personal undertaking to fund such works is relevant to the court only if an order can properly be made, on some basis, against Ralan.

264 The court's discretion may arise for consideration, if an entitlement to relief is established, but it is a discretion only to decline to grant relief. There is no discretion in the court to grant relief in the absence of a proven breach, even if the need for some court intervention is asserted to be in the public interest, in the interests of justice, or indicated as some "moral imperative".

The questions raised

265 Those introductory remarks lead me now to a detailed consideration of the four important questions they raise:

Firstly, the restriction on persons against whom orders may be made;

Secondly, the principles of vicarious liability and their possible application to the facts of the present case;

Thirdly, the validity or otherwise of Dix's six CCs; and

Fourthly, the utility of making declarations which do not form a basis for substantive orders against appropriate persons/parties.

No relief if no breach

266 Firstly, the question of granting relief against persons who are not directly responsible for any breach:

267 In Wilkie v Blacktown City Council and Others ("Wilkie") [2002] NSWCA 284; (2002) 121 LGERA 444, the Court of Appeal construed ss 122-124 of the EPA Act as authorising orders to be made against only persons who were in breach of, or had breached the Act. The appellant was held not to have breached the Act - she was not the owner of the subject premises and she derived no benefit from its unlawful development - so no rectification order could be made against her. The principal judgment was delivered by Davies AJA, who noted that the trial Judge (Pearlman J) had held that the appellant, although not in breach of s 76A(1), had "permitted or suffered" the unlawful development of the land. Davies AJA relevantly said ([30]-[36] and [55]-[60], emphasis added):

30 The trial judge appears to have proceeded on the view that s 124 of the

EP&A Act enables the Court to make a remedial order, when satisfied that

there has been a breach of the Act, against any party to the proceedings who

has played a part in the relevant breach. On the view of the trial judge, s 124

confers on the Court an unfettered discretion to make a remedial order, the

Court may make such orders it sees fit and apportion responsibility as it sees fit

and the Court may make an order against a person notwithstanding that that

person has not contravened the EP&A Act.

31 This interpretation is a surprising one for the EP&A Act does not use the

term "involved in a (the) contravention".... That expression can

be found in many State and Federal Statutes. ...[I]t is defined to include aiding and abetting. Section 55 of the Land and Environment Court Act 1979 (NSW) contains an aiding and abetting provision which applies in the prosecution of offences punishable in the summary jurisdiction of the Court. However, no such provision applies generally with respect to breaches of the EPA Act.

32 Even when the concept of "involvement in a contravention" applies, it has a limited application. In Giorgianni v The Queen (1985) 156 CLR 473, it was held that no one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, the person intentionally aided, abetted,

counselled or procured the acts of the principal offender. Willful blindness, that

is to say the deliberate shutting of one's eyes to what is going on, is equivalent

to knowledge, but neither negligence nor recklessness is sufficient. That

approach was adopted in relation to the term "involvement in a contravention"

in s 75B of the Trade Practices Act. In Yorke v Lucas (1985) 158 CLR 661

at 670 Mason ACJ, Wilson, Deane and Dawson JJ said:

"In our view, the proper construction of par (c) requires a party to a

contravention to be an intentional participant, the necessary intent being

based upon knowledge of the essential elements of the contravention."

The approach taken in Giorgianni was applied.

33 The findings of the trial judge against Ms Wilkie do not justify a finding that

Ms Wilkie was "involved in the contravention", giving that term a meaning

I have discussed. As the term is not, in any event, adopted by the EPA Act, it is

necessary to look with some care to see whether her Honour's conclusion was

well based on the authorities to which her Honour referred.

...

36 My impression of these provisions is that they are concerned with breaches

of the EP&A Act and authorise the Court to make orders against persons who

are in breach of or who have breached the EP&A Act. The Court's jurisdiction

is enlivened by a breach of the EP&A Act and it is empowered to make orders "to restrain the breach" and "to remedy the breach". The provisions do not suggest to me that orders may be made against persons who have not breached and are not in breach of the EP&A Act. This is particularly so as any person may bring proceedings under the EP&A Act. A more expansive interpretation might be justified were the provisions to be seen as part of the armoury of an enforcement body.

...

55 ... In my opinion, the evidence does not establish that Ms Wilkie did more than sublease the land for a lawful purpose. There was no finding, for example, that the rent was fixed by reference to the illegal use of the premises. Ms Wilkie was not a participant in the unlawful development.

56 ... [I]t appears that Ms Wilkie is still carrying on her business on a small part of the premises, which is outside the land the subject of the sublease....

57 On the evidence accepted by the trial judge, Ms Wilkie's involvement with

the unlawful use of the land was that she was the sublessor of the premises and

had the capacity to terminate the sublease but failed to do so. By the time of the

trial, she was not receiving rent for or paying rent for that land.

58 The trial judge held that Ms Wilkie's position was analogous to that of an

owner of land. Her Honour remarked that there was no relevant difference

between the position of an owner of land who permits and suffers a breach of

the EP&A Act and that of a person in the position of Ms Wilkie who controlled

the site as sublessor.

59 However, Ms Wilkie was not the owner of the premises and she was not involved in the dumping of material on the land. She had granted a sublease which authorised the use of the land for a lawful purpose. Ms Wilkie did not occupy and she was not in control of the land which Mr Reid and Graveyard Recycling used. See, eg, WD & HO Wills (Australia) Ltd v State Rail Authority of New South Wales (1998) 43 NSWLR 338.

60 The terms used by her Honour, "permitted or suffered" and "permitting or

allowing" describe no category of activity which, absent the use of the

expression in a statute, an instrument or a covenant, is known to the law as

giving rise to an obligation to remedy a breach. The terms are not wide enough

to describe a situation of "aiding or abetting" or of "involvement in the

contravention" even if these terms applied to s 124, which they do not. The

terms may well have relevance to the exercise of discretion once a breach by the person was established. But they do not authorise the making of an order of rectification against Ms Wilkie who did not breach the EP&A Act and did not benefit from the breach.

...

268 Heydon JA agreed with Davies AJA without comment, but Young CJ in Eq, in also agreeing, relevantly added ([5]-[14], emphasis added):

5 If Davies AJA's analysis of s 124 was incorrect (which it is not), there would

be great difficulty in mapping the limits of its operation.

6 [Pearlman J] found liability in Ms Wilkie because she "permitted or suffered" the site to be used in breach of the EP&A Act. However the other

cases to which we were referred employ various other terms all of which are

similar, but which have different shades of meaning.

7 In Holroyd City Council v Murdoch (I994) 82 LGERA 197, Stein J seems to

have found liability because the landowner knew or was made aware of the

situation and took no steps to prevent its recurrence.

8 In Wright v West Torrens City Corporation (1996) 91 LGERA 197, the

South Australian Fu1l Supreme Court found that a landlord was liable for

suffering an illegal use because he had power to prevent it and did not exercise that power. The Queensland Court of Appeal declined to follow that approach in Evans v Accident Insurance Mutual Holdings Ltd [1998] 2 Qd R 350.

However "fails to prevent" recurred in Sahade v Mosman Municipal Council

[2000] NSWCA 251.

9 Other sets of words that crop up in this connection are "acquiesces in" or

"aids and abets"; see eg Ex parte Parker; Re Brotherson [1957] SR (NSW)

326.

10 In Rochford Rural District Council v Port of London Authority [1914] 2 KB

916, the words in the statute under consideration were "caused or suffered".

11 In the classic law of illegal and immoral contracts, the test was; did the

plaintiff contribute to the performance of the illegal act with knowledge:

Pearce v Brooks (1866) LR I Ex 213 at 217.

12 Statutes such as s 75B of the Trade Practices Act 1974 (Cth) employ the

term "involved in a contravention".

13 It is idle to multiply further examples.

14 In view of these varieties of slightly different tests it is to my mind extremely

difficult to attribute to the legislature an intention that one of them should

apply.

269 In Hillpalm Pty Ltd v Heaven's Door Pty Ltd ("Hillpalm") (2004) 220 CLR 472, the High Court said (at [47]-[49], emphasis added):

47 There is no doubt that s 123, as a provision conferring powers on a

court, should be read giving the words of the provision full amplitude. As was said in the judgment of the Court in Owners of ''Shin Kobe

Maru'' v Empire Shipping Co Inc (28):

''It is quite inappropriate to read provisions conferring jurisdiction

or granting powers to a court by making implications or imposing

limitations which are not found in the express words.''

Nonetheless, s 123 of the EPAA is not to be read as conferring power

on the Land and Environment Court to make orders to remedy or

restrain breaches of the Act against persons who are not themselves in

breach of the Act or who, unless restrained, would be in breach of the

Act.

48 So much follows from the description of the kind of order which

may be made under s 123, namely, ''an order to remedy or restrain a

breach of this Act''. An order directed to a person who is not actually

in breach of the Act, and not threatening to act in breach, would

neither remedy nor restrain any breach.

49 To read s 123 in this way does not lead to any artificial, let alone

absurd, result; it does not strip s 123 of utility. In the common case

where the relevant development of the land is a particular permitted

use of the land, any person who uses the land in some other way

carries out a development of the land (by using it in that other way)

contrary to the consent that was given. It matters not whether the user

of the land was the applicant for consent. Section 76A of the EPAA

forbids the user of the land from carrying out the development

constituted by that use otherwise than in accordance with the consent

given. Accordingly, orders may be made against those who use land in

a manner not permitted by development consent. A person using the

land in that way is in breach of s 76A of the EPAA. ...

270 Preston ChJ expressly followed both Wilkie and Hillpalm in North Sydney Council v Moline (No 2)("Moline") [2008] NSWLEC 169, saying (at [21]-[24], citations omitted, and emphasis added):

21 Rather, the actus reus is that the person charged is a person who has carried out development contrary to the consent that was given. A person who does not "carry the development out" cannot be in breach of s 76A(1) and hence cannot commit an offence against s 125(1) of the Act. In the same way, civil enforcement orders can only be made against a person who is actually carrying out development on land in breach of the Act ....

22 Hence, by itself, the mere fact that a person is an owner of land on which development that breaches the Act has been carried out is not sufficient to make that person a person who carries out a development on the land; some participation in or express authorisation of the acts constituting the carrying out of a development is required ...

23 Development under the Act can involve different acts: see definition of "development" in s 4(1) of the Act. In these proceedings, the development the subject of the charges involved the carrying out of works (excavation) and the erection of a building (including the pouring of a concrete slab and erection of walls) not in accordance with the development consent given.

24 To "carry out" such development, positive acts are required; omission to act cannot suffice. A person could carry out such development by personally doing the positive acts involved, such as carrying out the excavation or pouring the concrete slab or erecting the walls. The person could also be attributed with having carried out such development by being responsible for the conduct of another person who did the positive acts of excavation, pouring of the concrete slab or erection of the walls.

271 In Botany Bay City Council v Saab Corp Pty Ltd ("Saab") [2011] NSWCA 308; (2011) 183 LGERA 228, Tobias AJA (with whom Basten and Macfarlan JJA agreed) relied on Wilkie, Hillpalm and Moline, and held that the directors had done no more than perform their directorial duties, and that, in the absence of "positive acts" on their part, the company's offending activity does not become theirs rather than the company's. His Honour said (at [103]):

103 The authorities to which reference has been made did not involve the issue

which is currently being debated. Nevertheless, the primary judge [Sheahan J in Botany Bay City Council v Ralansaab Pty Ltd ("Ralansaab") [2010] NSWLEC 225; 178 LGERA 44], having accepted that both Ralansaab and Saab Corp could both be said to be carrying out the development, nevertheless rejected the Council's submission that the Act extends beyond the normal "corporate veil" where there is a breach of the Act by the company. At [155] his Honour accepted the respondents' submission that the Act does not contemplate the notion of extending liability beyond the corporation itself merely because it acted, as it necessarily must, through its directors in carrying out the development. He concluded in the following terms:

[156] The "authorised, procured, or directed" test is concerned with the "tortuous acts" of directors in cases where a defendant company is in breach of provisions of legislation which specifically extends the liability to directors

in areas such as trade practices, copyright, and causing environmental

harm, rather than some omission in respect of fulfilment of a condition of

consent.

[157] In so far as acts in relation to the development were carried out by the

non-corporate respondents on behalf of the companies in which they held

office, and in circumstances where Ralansaab is now beyond this court's

reach, the only party that can be made liable to orders of this court to

remedy any breach of the consent would be the second respondent, Saab

Corp.

(Tobias AJA endorsed (at [123]) the remarks just quoted from my primary judgment in Ralansaab.)

272 In CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd (In Liq) (Receivers and Managers Appointed) (No 3) ("CTI") [2012] NSWLEC 6, Craig J referred to Wilkie and Hillpalm, but not to Saab, Saab being reserved and decided by the Court of Appeal while CTI was reserved before Craig J. His Honour relevantly said (at [71]-[72], emphasis added):

71 ... Section 76A(1)(b) relevantly proscribes the carrying out of development where development consent is required otherwise then in accordance with the provisions of a development consent. By s 122, a breach of the EPA Act extends to a failure to comply with the conditions of a development consent. It is by the provisions of s 124 that the Court is empowered to make an order to remedy or restrain such a breach.

72 While an owner of land to which a development consent relates will not, merely by the fact of ownership, be liable to an order under s 124 where breach has been demonstrated on the part of others, the role, if any, of the owner in relation to that breach is necessary to be considered in order to determine whether by its conduct or involvement in the breach it is susceptible to an order under s 124 .... However, where the owner has participated in the conduct giving rise to the breach or taken advantage of the breach, that conduct would ordinarily be sufficient to render the owner susceptible to an order under s 124....

273 Craig J's reference to the concept of "taking advantage of the breach" is sourced to a remark by Davies AJA in Wilkie (at [42]), where His Honour referred to the decision of Stein J in Holroyd City Council v Murdoch ('Murdoch') (1994) 82 LGERA 197.

274 In Murdoch, Stein J said (at 203):

In my opinion an owner of land may be liable under planning law to be restrained from leaving his land in such a condition so as to be an open invitation to illegal dumpers. Furthermore, an owner may be required to remove fill unlawfully dumped on his land without his authority, so long as he knows or is made aware of the situation and takes no steps to prevent its recurrence.

On the facts of this case Mr Murdoch knew full well what was happening to his land. He was made specifically aware by the Council in particular, but also by his agents and a neighbour, of the illegal dumping of fill on his land. He took no real steps to prevent its continuance over a period of at least eighteen months and failed to remove any of the illegal fill. His concern was to do the minimum to keep the Council satisfied and hopefully, in the meantime, find a purchaser. In my view the Council is entitled to a declaration that the subject land is being used by the respondent for the purpose of the storage of fall without development consent and in breach of the Environmental Planning and Assessment Act.

275 In Wilkie (at [41]), Davies AJA quoted the first paragraph of that passage from Murdoch, and went on (in [42]) to refer to three cases "where the facts were strong enough to warrant an inference that the owner had participated in the unlawful use, or, in Murdoch, had at least taken advantage of the breach".

276 Davies AJA had earlier referred (in [39]) to Cripps J's judgment in Ashfield Council v Andrews ('Andrews') (1986) 60 LGRA 248, to which Stein J had apparently not been referred at first instance in Murdoch (see [43]), and Davies AJA went on to refer also to the Court of Appeal's judgment (per Cohen AJA) in Murdoch v Holroyd City Council (unreported, 20 November 1996).

277 Davies AJA said of that Murdoch appeal (in Wilkie at [44]-[45]):

44. Stein J's judgment was considered in Murdoch v Holroyd City Council (New South Wales Court of Appeal, 20 November 1996, unreported). Cohen AJA delivered the principal judgment of the Court. His Honour said, inter alia:

"On what was, in effect, dealt with on a sliding scale various other authorities were pointed to show how, in other circumstances, owners have been found to have used land, even though the direct use was not by the owner. Certainly there have been cases such as were referred to whereby owners have been found who have acquiesced in the wrongful use of land and to that extent, therefore, would have been themselves regarded as users. ...

It has been pressed upon us that the lack of participation in the placing of the fill is an essential aspect of the claim against the appellant. In my opinion his Honour was correct in considering the fact that the appellant was a party at least to the spreading of fill and as his Honour has found he tacitly approved of the dumping of further waste. The fill continued to remain on the land without any steps being taken by the appellant to remove it. In my opinion that constituted storage on the land of the improperly placed fill and it was a storage in which, at least in part, he had been a participant. Whether that is an essential question does not seem necessary in these proceedings for me to decide. I am of the view that his Honour was justified in coming to the conclusion that there was a storage on the land of material and to that extent that this constituted a use of the land within the meaning of the definition and thus was a breach of s 76(2) of the Act."

45. Thus, Cohen AJA adopted the traditional approach and found against the appellant on the ground that the owner breached the EPA Act. Priestley JA, in a short judgment, expressed agreement with the reasons of Cohen AJA and those of Stein J. Sheller JA expressed agreement with the other members of the Court. However, as his Honour's brief reasons commenced, "I see no error in the conclusion to which Stein J came", I take his Honour to have adopted the reasoning of Cohen AJA.

278 Davies AJA then analysed the reasoning in some other post-Murdoch cases, and concluded (in [54]) that "the later authorities do not justify departure from the approach" taken by Cripps J in Andrews (at 252), and by Cohen AJA in Murdoch (as quoted above per Davies AJA).

279 The essence of that approach is that the mere making of money from ownership of land does not amount to use or development of the land.

280 Clearly the Wilkie principles are the correct approach to take, and I turn now to apply them to the evidence before me in the present case.

281 Ralan is relevantly the owner of the project, but took, as is apparently O'Dwyer's personal style, a very passive role in its execution.

282 Ralan admits that it was "actually carrying out development" (Moline at [21] - see Tp558, LL33-5), but there is no evidence upon which the court could be satisfied that, in terms of breach, Ralan was:

(1) "involved in a contravention" or "an intentional participant, [with intent] based on knowledge" (Wilkie at [32], quoting Yorke v Lewis at p670), or

(2) "in control" (Wilkie at [59]).

283 O'Dwyer admits that he came to know of some of the changes, but Ralan cannot be said to be guilty of "some participation in express authorisation of [positive] acts constituting the carrying out of development" in breach of the DC (Moline at [21], [22], and [24]).

284 The inference that the amendments made to the DC plans may have resulted in some cost savings on Ralan's part is not sufficient, in my view, to bring it within the very limited "take advantage" test, as it is explained in the authorities.

285 I do not accept Council's submission (par 101(c)) that Mr O'Dwyer himself was "reckless, and perhaps negligent at best".

Responsibility for the actions of others

286 The second issue to be addressed is whether breach can be sheeted home to relevant parties, e.g. Ralan, because of the actions of others.

287 Clearly, the principles stated and applied in Wilkie, Hillpalm, Moline, and Saab, and examined in detail above, are relevant here. These are civil enforcement proceedings, but many of the relevant authorities on the question of "vicarious responsibility" are cases of a criminal nature.

288 The established principles require that clear instructions be given, and/or that control be exercised, and that the actions be taken "in furtherance of the company's interests". (See the discussions of the principles of vicarious liability by Pearlman J in Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd [2003] NSWLEC 70, (2003) 128 LGERA 240; Biscoe J in Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232; (2009) 172 LGERA 225; Pepper J in Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 2) [2010] NSWLEC 73, especially at [264]-[274]; Pain J in Director-General, NSW Department of Industry & Investment v Mato Investments Pty Limited (No 4) [2011] NSWLEC 227, at [372]-[376], and by the judgments in the other cases their Honours cited).

289 I conclude:

(1) that Ralan cannot be found, on the evidence in this matter (summarised at [246]-[256] above), to be vicariously responsible for any breach by Dix, who, although chosen by Ralan/SNC/Bowers, enjoyed a statutory independence from them, and

(2) that none of the conduct of SNC or Bowers amounts to a breach of the EPA Act, for which Ralan can be held responsible, as the principal in the (head) contract under which they were engaged.

Validity of the CCs

290 Thirdly, I come to the validity of the CCs, the question which finally emerged to be the central issue for the court.

291 Part 4A certificates of various types have been attacked in several cases, since their introduction in 1997.

292 As can be seen from the terms of Part 4A, a finding that a certificate is invalid can sterilise a project completely, e.g., if a CC fails, an OC based on it fails as well.

293 In Newcastle City Council v Northern Residential Pty Ltd [2009] NSWLEC 10; (2009) 165 LGERA 274, Lloyd J held subdivision certificates to be invalid, on the ground that the certifier had delegated inspections to a non-certifier, but the Court of Appeal overturned that decision: Northern Residential Pty Ltd v Newcastle City Council ("Northern Residential") [2009] NSWCA 141; (2009) 75 NSWLR 192.

294 In delivering the judgment of the Court of Appeal, Hodgson JA closely examined the legislative history of the certification system, and the various sections in part 4A, noting that some (e.g. s 109E) "required" the certifier to be "satisfied" of something, and that others (e.g. ss 109H and 109J) provided that a certificate "must not be issued ... unless" something is the case. Section 109E regulates the certifier, while ss 109H and 109J regulate the certificate.

295 His Honour acknowledged the terms of s 109P as well, legislating an entitlement to assume a certificate has been duly issued, and that "all conditions precedent ... have been duly complied with".

296 His Honour upheld the Northern Residential appeal on grounds related to the delegated inspections, but went on to discuss (at [49]-[60]) the competing submissions of counsel regarding the consequences (including possible invalidity) of any breach involved in the issuing of the Part 4A certificates. That section of His Honour's judgment was obiter, and, while Mr Clay (subs par 27) relied on it, Mr Tomasetti urged the court not to follow it (Tp776, LL35-45, and Tp787, L22-p788, L8).

297 Caution must be exercised in relying upon, or in disregarding, such dicta, and it would be extremely unwise for a trial judge in this court to dismiss, without careful consideration, any views expressed by so eminent a jurist as Hodgson JA.

298 As Pepper J noted in Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229 (at [279]):

It has long been the case that the weight accorded to obiter dicta will vary depending on the circumstances in which the remarks are made. Considered dicta of an appellate court, although not strictly binding on courts of a lower position within the judicial hierarchy, must be afforded considerable weight and should only be departed from with caution (Ying v Song [2009] NSWSC 1344 at [19]-[21] per Ward J).

299 Hodgson JA, in the relevant section of his judgment, quoted (at [50]) from Spigelman CJ's judgment in Smith v Wyong Shire Council ("Smith") (2003) 132 LGERA 148, regarding "indicators of legislative intention that the breach of a provision ... should or should not result in invalidity".

300 The disciplinary regime administered by the BPB was seen by Hodgson JA as an appropriate response to a failure by the certifier, as distinct from a fault in the certificate. His Honour concluded ([54]) that it was not the legislative intention of Part 4A that a breach of s 109E would always or automatically result in invalidity of the certificate. Disciplinary consequences or a civil action for damages could result from, e.g., unauthorised delegation of functions, but the s 109E certificate in that case could stand.

301 Hodgson JA said (at [57], emphasis added):

In my opinion, a crucial consideration is the form of s 109J, as compared with that of s 109E(3). The former sets out a number of things that must happen before a subdivision certificate is issued. Since the 2007 amendment, these things must happen in fact, not merely to the satisfaction of the principal certifying authority. The fact that in 2007 the Legislature made that change to s 109J and not to s 109E(3) confirms, in my opinion, that the intention was that the requirements of s 109J be conditions of validity, whereas satisfaction of the principal certifying authority under s 109E(3) was not.

302 His Honour concluded this point (at [60]) thus:

Accordingly, had I considered s 109E(3)(d) to have been breached, I would not in any event have found invalidity.

303 Counsel have not demonstrated to this court that Hodgson JA was "plainly wrong", especially in [57], in the light of any binding or more persuasive authority, and Mr Clay observed (Tp829, L15-830, L12), that these were "considered dicta", and that Tobias JA, "a judge well experienced in planning matters agreed ... without qualification". Pain J appeared to accept Hodgson JA's analysis, and I too am very comfortable to do so on the certificate question.

304 Although the question of discretion also did not arise in Smith, Hodgson JA expressed his views on it ([62]-[71]), finding that Lloyd J's inadequate reasoning indicated that he may not have taken into account some highly relevant matters of cost and safety risk.

305 In Friends of Turramurra Inc v Minister for Planning ("Turramurra") [2011] NSWLEC 128, Craig J, in declaring that a particular LEP was made contrary to Division 4 of Part 3 of the EPA Act, and was of no legal force or effect, made the following remarks ([58] - emphasis added):

58 It is now settled legal principle that not every act of an administrative decision maker, when breaching an empowering statutory provision, will visit invalidity upon that act. As has been acknowledged (Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148 per Spigelman CJ at [6]), the principle is settled by the majority judgment of the High Court in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 as articulated at [91]:

"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue."

306 Craig J concluded ([66]) that, on the proper construction of Div 4 of Pt 3, and in reliance on the principles in Smith v Wyong and Project Blue Sky, it was not a legislative purpose to invalidate a local environmental plan where no valid s 65 certificate had been issued, but the plan had been made conformably with the provisions of that Division.

307 His Honour continued (in [69]-[71] - emphasis added):

69 In arriving at the conclusion that he did in Smith v Wyong , Spigelman CJ applied the observations of McHugh JA (as his Honour then was) in Woods v Bates (1986) 7 NSWLR 560. The reasoning in the latter case was approved by the High Court in Project Blue Sky. In Woods v Bates, McHugh JA said (at 567):

"In recent times the courts have shown great reluctance to invalidate an act done pursuant to a statutory provision because of the failure to comply with an antecedent condition: [citation of authority omitted]. Speaking generally, I think that, at the present time, the proper approach is to regard a statutory requirement, expressed in positive language, as directory unless the purpose of the provision can only be achieved by invalidating the result of any departure from it, irrespective of the circumstances or resulting injustice: cf Hatton v Beaumont [1977] 2 NSWLR 211 at 226 per Mahoney JA."

70 Applying the observations made in Woods v Bates , it is appropriate to ask, "can the purpose of s 65 only be achieved by invalidating the result of the departure from it?" In my opinion, the answer is "no".

71 It is for these reasons I discern no legislative purpose in the EPA Act to invalidate a local environmental plan, otherwise lawfully made, by reason of failure on the part of the Director-General (or his or her delegate) to have issued a certificate under s 65. As the consequences (if any) of the failure to issue the certificate must necessarily be addressed as part of the statutory process of which s 65 is an earlier component, it cannot have been the intention of Parliament that such breach would have all the adverse and potentially serious consequences sounding in a determination that the local environmental plan is invalid (cf Smith v Wyong at [26] - [29]).

308 The challenge to any Part 4A certificate must confront the provisions in s 109P, which creates an entitlement to assume its validity, such that one does not "go behind" the certificate, which, in the case of a CC, must predate the commencement of work if it is to have effect (ss 109E and 109F, amended to overturn the effect of Marvan Properties v Randwick City Council [2005] NSWLEC 9). Without a CC, a proponent cannot obtain an OC, occupy the project, or obtain and register a strata certificate.

309 All three of those steps were, at the time of the hearing, not, but have since been, completed in the present case (see [101]-[107] above).

310 The certificate challenged in Cessnock City Council v Laila ("Laila") [2012] NSWLEC 206 was an OC, and the respondent PCA filed a submitting appearance, so there was no contradictor to resist a declaration of invalidity involving s 109H. Pain J noted that there was no case where this court had to consider declaring an OC invalid. She also noted the different terminology in Part 4A, but applied the principles stated by Hodgson JA in Northern Residential. As distinct from the Court of Appeal's decision in that case that there was no breach of either s 109E or s 109J, and despite the absence of a contradictor in Laila, Pain J noted an undertaking given, and made the declaration sought that the OC was invalid, but she saw no utility in making an order restraining occupation.

311 Dix was the PCA in the case of Kogarah City Council v Armstrong Alliance Pty Ltd (No 2) ("Armstrong") [2013] NSWLEC 32. All parties agreed on the making of both a declaration of invalidity of a CC, and costs orders against both respondents, including Dix, so there was no fulsome argument of the relevant question which is now squarely raised in the present case.

312 Pepper J introduced her judgment in Armstrong with the following comments:

1. Once again before the Court is an application for declaratory relief sought by a council occasioned by the unlawful certification by an accredited certifier of a development that is markedly different to the approval granted by that council. Regrettably this is becoming an all too common occurrence in this Court. It must not be tolerated. It brings the certification system into disrepute and undermines the planning regime in this State.

2. Indeed, the unlawful conduct by the certifier in the present case is so egregious that the application has been able to be resolved by consent between the parties. This includes the certifier agreeing to a costs order against him notwithstanding that he has filed a submitting appearance.

313 Her Honour accepted evidence that showed "significant inconsistencies" in that case, as between what was certified and constructed, and what had been approved. They included construction of an additional unit, storey, outdoor terrace and elevator shaft. Breaches of the EPA Act were admitted, and Her Honour found that Regulation 145(1)(a) "was flagrantly transgressed by Dix". She found utility in, and a "very real necessity" for, her declaring the CC invalid, by consent. Again there was an undertaking to cease construction work pending a new CC and a building certificate.

314 The 2009 DC at the heart of Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5)("Foxman") [2013] NSWLEC 68, which was a class 4 civil enforcement proceeding regarding landfill and earthworks, included the usual condition that work not commence "prior to the issue of" a CC by the PCA, and other conditions precedent to either the CC or works.

315 Before any CC was issued in Foxman, Council forwarded two Notices of Intention to Serve an Order for restoration of land to its pre-works state. The PCA later issued a CC "after the event", clearly contrary to s 109F(1A), and Pepper J found it (at [63]) to be void and of no effect, and (at [288](b)) of "scant reassurance" to the parties.

316 Council sought no orders against the PCA in Foxman, and the PCA played no active role in those proceedings, but there was evidence before Her Honour of roads/fire trails being relocated by the CC plans, agreed (see [263](g)) to constitute a breach of s 76A(1)(a) of the EPA Act. Her Honour set aside the CC.

317 Turning to the present case, clearly cl 145 of the Regulation plays a key role in determining the validity of the CCs.

318 In its original form, cl 145 provided that a PCA must not issue a CC unless satisfied of various matters, but, after the Court of Appeal's decision in Lesnewski v Mosman Municipal Council [2005] NSWCA 99;(2005) 138 LGERA 207, it was amended to remove its subjective element (see the terms of the amended clause, as quoted in [233] above).

319 It has since relevantly provided that the PCA must not issue a CC unless (cl 145(1)(a) - emphasis added):

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

320 I set out the relevant principles of construction in my first-instance judgment in Abret Pty Limited v Wingecarribee Shire Council [2009] NSWLEC 132, at [24]-[32], and that summary was not disturbed on appeal ([2011] NSWCA 107; 180 LGERA 343). Essentially, courts must construe instruments, with commonsense, to avoid irrationality, absurdity, and injustice, and to give practical effect to the clear intent of the draftsperson.

321 Mr Clay argued in the present case, but failed to satisfy the court, that there were faults in the furnishing of documents to the PCA. Even if that were so, and it has not been established, I would likely consider such a "breach" to be "technical" in nature, in the overall circumstances of this case, and not sufficient to warrant a finding of invalidity.

322 Relying, by way of analogy, on Hodgson JA's dictum in Northern Residential ([57]), and also on views expressed in departmental circular PS07-009 (Exhibit C26), Mr Clay also submitted (pars 27-34) that (1) the question of "not inconsistent" makes cl 145 "now unequivocally jurisdictional", such that (par 37) a finding of inconsistency leads to invalidity, and (2) this court should follow Armstrong and Laila, and find and declare invalidity.

323 In Laila, the grounds for invalidity of the OC were failure to satisfy some essential and mandatory conditions of the DC. In Armstrong, the relief was based on a number of "inconsistencies", which, on any test, were major, and included the certification of an additional unit, storey and terrace. In Foxman, the parties agreed that some changes made by the CC amounted to "inconsistency". In the present case, the principal changes to which objection has been taken were to elements of finish.

324 Relief is sought on the grounds that some, if not all, of those changes/variations which were

(1) admittedly made, by or on behalf of Ralan, to the project as it was defined by the DC; and

(2) certified by Dix, on the application of Bowers on behalf of SNC and Ralan,

amount to "inconsistencies" which breach cl 145, and lead to a breach of s 76A.

325 On any measure, this has been a huge development on a confined site, in difficult circumstances. A certain amount of adjustment or reconfiguration was inevitable, and the court, while respecting Byrnes's analysis of the changes made, accepts the explanations provided by Bowers, and also his assurance that he at no stage deliberately ignored the question of whether his changes might, in some cases, warrant the making of a modification application.

326 Some adequately explained adjustment in the colour of some glazing, and the decision to abandon the proposed louvres, which Council now says (Tp835, L17) were "a major and important design feature", resulted in changes in final presentation which proved unacceptable to Council, and to its design expert, Morrish.

327 As I have already noted, reasonable minds differ on such merits issues, and I certainly express no view on them.

328 However, I do echo the concern expressed by Pepper J in Armstrong ([312] above): Private certifiers play a vital role in ensuring appropriate (including "consistent") development takes place, and the certification system must not fall into disrepute and so undermine the planning regime in this State. What might be seen as unacceptable by some, including regulators and expert commentators, as here, may not represent a breach of the certifier's duty, and/or any infringement of the planning regime.

329 What matters to the court is that all the fundamentals of the project, as defined in the DC ([14] and [38] above), remained in place after certification.

330 I have concluded that they clearly do, and that the challenged CCs are valid.

331 Those engaged by and on behalf of Ralan to complete the project were entitled to rely on them, and there is absolutely no evidence that they strayed beyond them. The evidence suggests, on the contrary (Tp780), that the building works were performed to a satisfactory standard.

332 In those circumstances, I conclude that (1) none of the nine declarations finally sought, in respect of the CCs, and (2) neither of the declarations, and none of the orders finally sought, against Ralan, ought be made.

Conclusions, including on discretion and utility

333 Council was an appropriate applicant for the relief sought. Its principal remaining concern in the case was the appearance of the finished project, and it wanted the court to order remedial works, likely to cost about $12M.

334 Ralan has put in place arrangements which mean that such works could be completed, despite some likely interference with the occupants of the finished project. Ralan's "controlling mind" has personally guaranteed that any orders made requiring such works will be complied with.

335 Declarations and orders of the types sought cannot be made in the absence of proven breach(es) of the planning law, which can be sheeted home to Ralan, no matter what the court might think of the aesthetics of the final building. Ralan denies any wrong-doing in the execution of the development.

336 As becomes clear from all I have written, I find no breach of the law. The changes made by the CCs, to the project as originally approved, do not make it inconsistent with the approval, so the CCs are not invalid, or void and of no effect.

337 Accordingly, Ralan and its delegates were not only entitled to abide by those CCs; they were obliged to do so.

338 No orders are sought against the certifier Dix, and, while any breach of statutory duty by him in carrying out his task as PCA for the project may be a matter for the disciplinary body, or some civil action, it does not amount to a breach of the planning and development regime governing the construction of Ralan's project.

339 Having decided that Council has failed to establish its entitlement to any of the relief it sought, there has been no need for the court to further consider the fourth question arising, namely the question of the utility of making the declarations sought, but I would have applied the Chief Judge's analysis and decision in the 2007 case of Lani, to which I have earlier referred (see [205] and [260] above), which reinforces the principle that ([17]) "declarations should be made for both procedural and substantive reasons", where ([18]) "a public pronouncement" of breach is called for. (See also [21]-[25] of His Honour's judgment).

340 Given all that has transpired since the main submissions were made, I am not convinced there would have been, on His Honour's principles, any utility in making the declarations sought regarding the CCs, had I found them invalid.

341 Much of the evidence I heard over the many days of hearing was relevant to consideration of questions of discretion, but that issue now also does not arise.

342 There was a fair amount of criticism, in particular, of Council's delay in bringing these proceedings (see APOD par 55(v), quoted in [214] above), but also of (1) its late campaign against the almost-finished project, (2) the alleged inequity of its bringing the case when Ralan was at its most vulnerable, after Bowers had regularly consulted Council and, at least temporarily, allayed its emerging concerns, and (3) the fact that the victims of Council's success in the case would, primarily, be innocent parties, especially Ralan's purchasers.

343 Council's response to the respondents' evidence and submissions on discretion was relatively weak, and I believe that, had it been necessary to decide it, I would have exercised my discretion against granting relief.

Costs

344 The Council failed in its ever-shifting case against Ralan, and essentially abandoned its pursuit - at least in these proceedings - of Dix and Morgan.

345 In those circumstances, it should normally be expected to follow that Council be ordered to pay the costs of all three respondents. I will, however, allow some time for all parties to consider their positions on costs.

H: Orders

346 The orders of the court will be:

(1) Council's Third Further Amended Summons is dismissed.

(2) All exhibits are returned.

(3) The Council is ordered to pay the costs of all three respondents on a party-party basis, as agreed or assessed, unless within 21 days any one or more of the parties file(s) motion(s) seeking different costs orders.

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Decision last updated: 16 October 2013