Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd [2021] NSWCA 2

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd [2021] NSWCA 2 Hearing dates: 26 October 2020 Decision date: 01 February 2021 Before: Basten JA at [1]; Payne JA at [82]; Brereton JA at [83] Decision: (1) Dismiss the appeal from the judgment of the Land and Environment Court delivered on 5 March 2020. (2) Order that the appellants pay the first-third respondents' costs of the appeal on the ordinary basis and the costs of the fourth and fifth respondents on a submitting basis. Catchwords: ENVIRONMENT AND PLANNING – development approval – variation of plans – formalities for approval of changes – whether requirement for written application – recording approval of certifying authority – notification of consent authority – effect of breach of regulations ENVIRONMENT AND PLANNING – enforcement proceedings – construction certificate – variation of development – whether construction certificate modified – whether work undertaken before approval by certifying authority – failure to notify consent authority – whether development unlawful Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 80, 81A, 109C, 109F, 109Q; Pts 4A, 6 Environmental Planning and Assessment Amendment Act 2017 (NSW), cll 4, 10, 14; Sch 6, Pt 6.2; Sch 13; Div 6.3 Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW), cl 18 Environmental Planning and Assessment Amendment (Building and Subdivision Certification) Regulation 2019 (NSW), cl 2 Environmental Planning and Assessment Amendment Regulation 2018 (NSW), cl 2 Environmental Planning and Assessment Regulation 2000 (NSW), cll 139, 141, 142, 143B, 143C, 145, 147, 148; Pt 8, Div 2 Cases Cited: Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 Category: Principal judgment Parties: Omaya Investments Pty Ltd (First Appellant) BSM Holdings Pty Ltd (Second Appellant) Dean Street Holdings Pty Ltd (First Respondent) TQM Design & Construct Pty Ltd (Second Respondent) Patrick John Elias (Third Respondent) Maurice Freixas (Fourth Respondent) Burwood Council (Fifth Respondent) Representation: Counsel: T F Robertson SC / J P Farrell (Appellants) C J Leggat SC / L Nurpuri (First, Second and Third Respondents)