Land and Environment Court New South Wales Medium Neutral Citation: Xu v Chen [2023] NSWLEC 46 Hearing dates: 18 April 2023 Date of orders: 18 April 2023 Decision date: 18 April 2023 Jurisdiction: Class 4 Before: Duggan J Decision: See paragraph 21 Catchwords: CIVIL ENFORCEMENT – s 9.46 of Environmental Planning and Assessment Act 1979 (NSW) – where first and second respondent filed submitting appearances – whether complying development certificate (CDC) is invalid – invalid CDC cannot be modified – declaration that CDC and modified CDC are invalid COSTS – indemnity costs – whether conduct of first and second respondent was reasonable – first respondent to pay costs on indemnity basis Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Regulation 2001 (NSW) Cases Cited: Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) 241 LGERA 133 Category: Principal judgment Parties: Hui Xu (Applicant) Qijing Chen (Frist Respondent) Rupu Gong (Second Respondent) Representation: Counsel: M J Astill (Applicant) A Carney, solicitor (Frist Respondent) Submitting appearance (Second Respondent) Solicitors: SHL and Associates Lawyers (Applicant) Carneys Lawyers (First Respondent) File Number(s): 2022/350925 Publication restriction: No EX-TEMPORE Judgment 1. HER HONOUR: In this matter the Applicant by way of summons filed on 21 November 2022 seeks relief by way of the making of declarations that a complying development certificate granted by the Second Respondent to the First Respondent is invalid. That complying development certificate (the CDC) was granted for alterations and additions to an existing dwelling house at 17 Princess Street, Rose Bay. The First Respondent is the owner of that land and the beneficiary of the CDC. The Second Respondent is the certifier. Each of the Respondents have entered submitting appearances. 2. The Applicant is an adjoining landowner who is the registered owner of 19 Princess Street, Rose Bay. The CDC that was granted on 22 August 2022 purported to certify that the development proposed in that application was complying development for the purposes of Div 4.5 of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act). Complying development certificates may only be issued if they comply with the requirements of s 4.27 of the EP&A Act, in particular, subpar 1(a) relates to the fact that the certificate will be a statement that the development, if carried out, will comply with all the development standards applicable to the development and with other requirements prescribed by the regulations. 3. Having regard to the evidence in this case, I am satisfied that the CDC as granted did not comply with the development standard relating to the side setback requirements as they related to the maximum length of walls within 900 mm of a side boundary as provided for in Pt 3 of the Housing Code and in particular Pt 3 cl 3.10 subpar 8. That provision provides that maximum length of walls within 900 mm of side boundary, must not exceed the length shown in the table. In this case, the maximum length of wall is 20 metres or 50% of the depth of the lot whichever is the lesser. 4. In this case, the evidence discloses that the width of the lot was 9.15 metres. The length of the lot on the western boundary was 47.517 metres, therefore the length of wall, the lesser amount of 20 metres applies. The evidence also discloses, from the plans that were approved in the CDC, that there is a length of wall which comprises the garage, three bedrooms, bathroom and living area/kitchen (excluding the enclosed balcony area at the rear) which exceeds 20 metres. Whilst part of that wall was existing, the CDC proposed an extension of that wall such that it exceeded the 20 metres as prescribed in the development standard. It was, therefore, development that was not compliant with the development standards so as to render it complying development. 5. In addition, the Applicant contends that the development also did not comply with the development standard contained in cl 3.14 that required that the dwelling house must contain the following elements, "At least one door and one window to a habitable room at ground floor level facing the primary road." 6. The plans disclose in the CDC that at ground floor level the garage, a door and a window leading onto what was designated as a foyer and a bathroom were the only openings facing the street. The window to the bathroom does not qualify as a bathroom is not a habitable room. The door and window to the foyer, however, I am satisfied does comply as the foyer, whilst partitioned by a screen to prevent viewing from an open door into the body of the building was not sufficient to comprise an enclosure as referred to in the BCA definition of a habitable room such that it would fail to comply. 7. However, in light of the findings I have made about the length of the wall non‑compliance, the finding I have made in respect of cl 3.14 does not otherwise affect the entitlement of the Applicant to the relief it seeks. 8. In addition, cl 134 of the Environmental Planning and Assessment Regulation 2001 (NSW) requires that the certifier must not issue a complying development certificate until at least 14 days after the certifier has given written notice to each neighbour to the land. In this case, I am satisfied in light of the fact that there has been no evidence or no contention denying the assertions in the pleadings that notification was not given, that notification was in fact not given and, accordingly, the certifier had no power to grant the CDC at the relevant time. 9. After the grant of the CDC the First Respondent sought and obtained from the Second Respondent a modification to the CDC granted on 17 November 2022. That modification sought in part to resolve one of the issues that related to the fact that the original CDC included a component of the building, which was three storeys as defined and, therefore, would have been in breach of the provisions of the development standards relating to complying development certificates. The other issue in relation to the boundary wall and the design of the building at street level remained unchanged. 10. A complying development certificate which is invalid cannot be modified. See Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) 241 LGERA 133 at [144]. Accordingly, there was no modification that was capable of being made to render valid that which had been invalid even if it attended to all of the non‑compliances with the development standards which was not the case in respect of this modification. The modified CDC retained the non‑compliance with the development standard in relation to the western wall length and, accordingly, would also be invalid for the same reason as I have identified in relation to the original CDC. 11. For those reasons, I am satisfied that the Applicant is entitled to the relief it seeks in its summons at pars 5 and 6. Accordingly, I make a declaration that the CDC is invalid and a declaration that the modified CDC is invalid. For those reasons, it is also appropriate that I make the consequential orders sought by the Applicant that pursuant to s 9.46 of the EP&A Act an order that the First Respondent by themselves, their servants and agents 1. Be restrained from carrying out any building or work at the site in reliance of the CDC and/or the modified CDC; and 2. Demolish or remove all building work carried out in reliance of the CDC and the modified CDC. 1. I will, accordingly, make those orders based on the evidence before me which is not in dispute between the Fist Respondent who has made a submitting appearance and the Second Respondent who has made a submitting appearance. 2. The submitting appearances in this matter were both made save as to cost. The First Respondent appears today to make submissions in relation to costs. The Second Respondent was notified of the hearing and was notified that the Applicant would be seeking to press its requests for costs. The Second Respondent has not appeared, and I therefore infer and am prepared to proceed on the basis that the Second Respondent does not wish to be heard in relation to costs. In proceedings of this nature the usual order is that costs follow the event. That being the case, the Applicant would be entitled to the usual costs order as against both the First and Second Respondents as it has been successful in relation to these proceedings. 3. However, the Applicant seeks a different order in relation to the First Respondent. It seeks an order that the First Respondent pay its cost on an indemnity basis. The request that I exercise my discretion to make a different costs order is based upon correspondence passing between the parties prior to the commencement of proceedings and subsequent to the commencement of proceedings. What the correspondence demonstrates is that the First Respondent had the benefit of legal advice and on the basis of that legal advice indicated to the Applicant that it would not surrender either the CDC or the modified CDC but rather would instruct her builder to commence work on or about 5 December 2022 in reliance upon the modified CDC. 4. The Applicant was required to bring these proceedings within three months of the date of grant of the original CDC if it wished to rely upon the operation of s 4.31 of the EP&A Act and it did so, commencing proceedings on 21 November 2022, being one day prior to the expiration of that three-month period. After the summons was commenced the Applicant continued to correspond with the solicitor for the First Respondent wherein it was not until sometime at the end of March 2023 that the First Respondent indicated that it would make a submitting appearance in relation to this matter. She had, however, taken steps to obtain the modified CDC which I have otherwise found to be invalid and has not sought to surrender the consent but rather has required the Applicant to come to Court to establish her entitlement to the relief and incur costs in those circumstances. 5. The First Respondent makes two submissions: first, that in the exercise of my discretion notwithstanding that the Applicant has been successful that I would make no orders for costs as it relates to the First Respondent on the basis that the First Respondent has, at all times, relied upon the expertise and advice of the Second Respondent and it was, in effect, a victim of the same errors of the Second Respondent as the Applicant. They submitted that it is appropriate in the circumstances of the case that all costs be borne by the Second Respondent. In relation to the application for indemnity costs, the solicitor for the First Respondent submits that I would find the conduct of the Applicant was not so unreasonable or extraordinary that a different cost order should be made, rather, again relying entirely on the advice of others the First Respondent was not to know that the works proposed in its plans could not be the subject of a complying development certificate and it was entitled to review its position and that it capitulated at the earliest possible date. 6. The Applicant, being successful in relation to these proceedings, is one matter that I take into account in the exercise of my discretion in relation to costs. The other matters that I take into account in the exercise of my discretion in relation to costs is that once the CDC is granted, either validly or invalidly, there was nothing that the Second Respondent could do but to submit to the proceedings and have a declaration made. There is no power in the EP&A Act for it to withdraw a complying development certificate or to otherwise de‑activate an operational complying development certificate. The Second Respondent submitted at the earliest possible date and in the circumstances, I accept that their conduct was reasonable but that it was necessary for the Applicant to bring the proceedings in order that the declaration be made and that the Second Respondent should pay the Applicant's costs in the ordinary sense in relation to the proceedings. 7. In relation to the First Respondent, I do not accept that an applicant for consent can wash its hands of any responsibility in relation to the formulation of the application. The application for the CDC was an application for a complying development certificate. The First Respondent had retained a designer who prepared the plans. The development standards are set out clearly in the State Environmental Planning Policy. The First Respondent was at least aware that she was seeking to rely upon those provisions and should have satisfied herself that the application was one that was capable of approval. Whilst the certifier certifies, the application is formulated by the Applicant for the CDC, and it cannot stand by and put all of the responsibility on the certifier when it was the one who formulated the application. Accordingly, it is appropriate that the First Respondent pay some cost. The question is whether those costs should be costs in the ordinary event or on an indemnity basis. 8. Whilst Mr Carney has made submissions in relation to the advice that was received by the First Respondent, and the fact that the First Respondent did not or could not know, I have been given no evidence form the First Respondent as to her state of mind, the advice she was given, and whether in fact she was acting expeditiously and sensibly in respect of the matter. The only person who had control as to whether or not these proceedings were required to continue was the First Respondent. The only person who had the opportunity to surrender the CDC or the modified CDC so that the proceedings did not need to continue was the First Respondent. I see nothing in the correspondence before me that explains why the First Respondent did not, notwithstanding the fact that she had legal advice and was corresponding with the Second Respondent, that the opportunity was not taken either before the commencement of proceedings or at a time she considered it appropriate to capitulate that the CDC or the modified CDC were not surrendered so as a need to bring the proceedings for this hearing to come before me would be unnecessary. 9. In those circumstances, I am satisfied that from the commencement of proceedings to the hearing today that the First Respondent should pay the Applicant's costs on an indemnity basis. Costs leading up to the commencement of proceedings, however, should be on the ordinary basis, on the basis that I am satisfied that at least at that time the First Respondent was still seeking to understand the scope and extent of the non‑compliances, and that 17 November 2022, or sometime shortly before that, was the first occasion on which the scope of the non‑compliances was particularised, it being shortly before the commencement of the proceedings on 21 November 2022. 10. For those reasons: 1. I declare that CDC‑102325 granted by the Second Respondent to the First Respondent on 22 August 2022 for alterations and additions to an existing dwelling house at 17 Princess Street, Rose Bay is invalid. 2. I declare that the modification reference CDC‑121869 for alterations and additions to an existing dwelling house at 17 Princess Street, Rose Bay is invalid. 3. I order that pursuant to s 9.46 of the Environmental Planning and Assessment Act 1979 (NSW), the First Respondent by themselves, their servants and agents: 1. be restrained from carrying out any building or work at the site, namely 17 Princess Street, Rose Bay in reliance on the CDC and/or the modified CDC referred to in declarations 1 and 2 above; and 2. demolish or remove all building or work carried out in reliance on either the CDC or the modified CDC referred to in declarations 1 and 2 above. 1. I order that the Second Respondent pay the costs on an ordinary basis of the Applicant of the proceedings. 2. I order that the First Respondent pay the Applicant's costs of the proceedings up to but not including the commencement of the summons on 21 November on an ordinary basis and thereafter pay the costs of the Applicant on an indemnity basis. 3. I order that to the extent of the ordinary costs component of the costs order, the First and Second Respondents are jointly and severally liable in respect of those costs. 4. The exhibits are returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 April 2023