Land and Environment Court New South Wales Medium Neutral Citation: Wollondilly Shire Council v Kennedy [2023] NSWLEC 53 Hearing dates: 13, 14 April 2023 Date of orders: 12 May 2023 Decision date: 12 May 2023 Jurisdiction: Class 4 Before: Pain J Decision: The Court makes the following declaration as identified in the Amended Summons dated 5 May 2022: (1) A declaration that complying development certificate 1230/01 issued by the Fourth Respondent to the First Respondent on 28 October 2021, for the carrying out of development for the purposes of the construction of a detached shed on land described as Lot 22 DP595037, known as 780 Cawdor Road, Cawdor NSW is invalid and of no effect. (2) Costs are reserved. Catchwords: ADMINISTRATIVE LAW - review by Court of validity of complying development certificate pursuant to s 4.31 of Environmental Planning and Assessment Act 1979 (NSW) - extraneous communications cannot be used to construe complying development certificate - as complying development certificate does not identify purpose of use of shed permissibility under local environmental plan unknown – car park use prohibited - shed not ancillary to dwelling house – declaration of invalidity made JUDICIAL REVIEW – certifier's decision that shed complying development unreasonable – complying development certificate lacks finality and is uncertain as architectural and engineering plans conflict on key matter – complying development certificate invalid because not issued with mandatory conditions required by State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 1.4, 4.1, 4.2, 4.3, 4.26, 4.27, 4.28, 4.31, 7.21 Environmental Planning and Assessment Amendment Act 2017 (NSW), Sch 4, cl 4.1 Environmental Planning and Assessment Regulation 2000 (NSW), r 126, Div 2A, Sch 1 Pt 2 r 4 Land and Environment Court Act 1979 (NSW), s 25A National Construction Code (Cth), Pt A6, Sch 3 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW), cll 1.18, cl 2.21, 2.27, 2.9, 2.23A, 3A.5, 3A.39 Wollondilly Local Environmental Plan 2011 (NSW) Interpretation Act 1987 (NSW), s 35 Cases Cited: Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 Central Coast v 40 Gindurra Road (2019) LGERA 133 Chamwell v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Hills Shire Council v Drenovac [2022] NSWLEC 139 Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190 Hy-Tec Industries (Queensland) Pty Ltd v Tweed Shire Council [2019] NSWLEC 175 Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 Minister for Immigration and Border Protection v SZVFW and ors (2018) 264 CLR 541; [2018] HCA 30 Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 Mid Western Community Action Group Inc v Mid Western Regional Council & Stockland Development Pty Ltd [2007] NSWLEC 411 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Residents Against Improper Development Inc v Chase Property Investments Pty Ltd (2006) 149 LGERA 360 Saffioti v Kiama Municipal Council (2017) 225 LGERA 136 Shell Co of Australia Ltd v Parramatta City Council (No 2) (1972) 2 NSWLR 632 Shire of East Pilbara v FMG Pilbara Pty Ltd [2009] WASC 110 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 Weston Aluminium Pty Ltd v Environment Protection Authority [2022] NSWCA 236 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 Category: Principal judgment Parties: Wollondilly Shire Council (Applicant) Michael John Kennedy (First Respondent) Brett James Hobson (Second Respondent) Laura Jane Hobson (Third Respondent) Jason Barnett (Fourth Respondent) Representation: Counsel: C Norton (Applicant) T To (First Respondent) Solicitors: Lindsay Taylor Lawyers (Applicant) Mills Oakley (First, Second and Third Respondent) Colin Biggers and Paisley Lawyers (Fourth Respondent) File Number(s): 2022/23908 JUDGMENT Amended summons dated 5 May 2022 Legislation Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Regulation 2000 (NSW) State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) Wollondilly Local Environmental Plan 2011 (NSW) Land and Environment Court Act 1979 (NSW) National Construction Code (Cth) Statement of Agreed Facts Issues EVIDENCE Council's evidence Application for Complying Development Certificate Complying Development Certificate Letter issuing Complying Development Certificate Mr Kennedy's evidence Affidavit of Mr Kennedy Affidavit of Ms Hobson Ground 1 absence of purpose Construction of complying development certificate Council's submissions Mr Kennedy's submissions Consideration of construction of complying development certificate Purpose of shed Council's submissions The need for purpose The shed lacks purpose Mr Kennedy's submissions Finding on purpose Ground 2 unreasonableness Council's submissions Mr Kennedy's submissions Finding on ground 2 Grounds 3-5 Evidence Statements after complying development certificate issued Ground 3 development for impermissible purpose of car park Ground 4 proposed use not ancillary to use of dwelling Council's Submissions Mr Kennedy's submissions Ground 3 Ground 4 Finding on grounds 3-4 Ground 5 impermissibility of shed as not an outbuilding Council's submissions Mr Kennedy's submissions Finding on ground 5 Ground 6 complying development certificate not issued subject to conditions Council's submissions Mr Kennedy's submissions Finding on ground 6 Ground 7 complying development certificate uncertain and lacks finality Council's submissions Height discontinuity Mr Kennedy's submissions Finding on ground 7 Discretion/relief Costs Declarations and orders JUDGMENT 1. Wollondilly Shire Council (the Council) challenges the validity of a complying development certificate (CDC) on numerous grounds. The impugned CDC numbered 1230/01 was issued by the Fourth Respondent Mr Barnett (the Certifier) to the First Respondent Mr Kennedy on 28 October 2021. It purports to authorise the carrying out of development described as 'Construction of a Detached Shed' on land described as Lot 22 in DP 595037, located in Cawdor Road, Cawdor (the Land). 2. Mr Kennedy owns the Land as a tenant in common with the Second and Third Respondents, Mr Hobson and Ms Hobson. The Certifier and Mr and Ms Hobson have filed submitting appearances save as to costs. 3. The application of s 4.31 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) introduced on 1 March 2018 by cl 4.1(9) of Sch 4 of the Environmental Planning and Assessment Amendment Act 2017 (NSW) following Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 (Trives CA) arises directly for the first time. The parties tell me this is the first case since the introduction of s 4.31 where the challenge to a CDC has been commenced within three months of the issue of the certificate as required by s 4.31(a). Amended summons dated 5 May 2022 1. While the amended summons refers to three grounds, the Council's case has seven grounds and these are identified in the context of the amended summons: Relief claimed 1. A declaration that complying development certificate 1230/01 issued by the Fourth Respondent to the First Respondent on 28 October 2021 (CDC), for the carrying out of development for the purposes of the construction of a detached shed (the Shed) on land described as Lot 22 DP595037, known as 780 Cawdor Road, Cawdor NSW (the Land) is invalid and of no effect. 2. Costs. 3. Such further or other orders that the Court deems fit to make in the circumstances. Grounds 1. The CDC purported to authorise the carrying out of development where a CDC is not authorised to be issued in respect of the Shed as it does not constitute complying development within the meaning of cl 3A.5 of Part 3A 'Rural Housing Code' of the State Environmental Planning Policy (Exempt and Complying Development) 2008 (NSW) (Codes SEPP). Particulars a) Clause 3A.5(1) of the Codes SEPP provides that the erection of a new ancillary development is complying development if, amongst other things, the development is ancillary to a dwelling house erected on a lot in Zone RU1. b) The Land is zoned RU1 under the Wollondilly Local Environmental Plan 2011 ("the LEP"). c) The CDC does not identify the purpose for the Shed and accordingly: i. the development purported to be approved by the CDC cannot be characterised as complying development which may be carried out on the Land for the purposes of s 4.26 of the Environmental Planning and Assessment Act 1979 and the Codes SEPP [ground 1]; and/or ii. any determination by the Fourth Respondent that the development purported to be approved by the CDC was complying development was, in the circumstances, unreasonable [ground 2]. Further or in the alternative to Particular (c): d) The Shed is being constructed and is proposed to be used for the purpose of a car park as defined in the LEP. e) Development for the purpose of a car park as purportedly approved by the CDC is prohibited in Zone RU1 under the LEP and is not complying development [ground 3]. Further or in the alternative to Particulars (c)-(e): f) The proposed use of the Shed is not ancillary to the use of the dwelling on the Land for the purposes of the Codes SEPP because: i. the size and scale of the Shed (being approximately 1,380m2 in area) goes beyond what could be reasonably described as ancillary to the use of the Land for a dwelling house; and ii. the number of motor vehicles that can be accommodated in the Shed, is beyond what could reasonably be required for the use of the dwelling house [ground 4]. Further or in the alternative to particulars (c)-(f): g) The Shed is not an "outbuilding" for the purposes of the Codes SEPP as it is not a Class 10A building under the National Construction Code (formerly, Building Code of Australia) but is a Class 7 building under that Code [ground 5]. 2. Further or in the alternative to Ground (1) above, the CDC was not issued subject to the conditions specified in Schedule 6 to the Codes SEPP, contrary to cl 3A.39 of the Codes SEPP [ground 6]. Further or in the alternative to Grounds (1)-(2) above, 3. The CDC is uncertain and lacks finality as: a) the height of the Shed shown in the architectural plans referred to in the CDC differs from the height of the Shed shown in the structural plans referred to in the CDC; and b) The CDC purports to approve plans which are not correctly or precisely identified in the CDC [ground 7]. Legislation 1. The legislation in force at the time the CDC was issued on 28 October 2021 is identified below. Environmental Planning and Assessment Act 1979 (NSW) 1. The relevant sections of the EPA Act state: Part 1 Preliminary … 1.4 Definitions complying development is development for which provision is made as referred to in section 4.2(5). complying development certificate means a complying development certificate referred to in section 4.27. consent authority—see Division 4.2. … development consent means consent under Part 4 to carry out development and includes, unless expressly excluded, a complying development certificate. … 1.5 Meaning of "development" (1) For the purposes of this Act, development is any of the following— (a) the use of land, (b) the subdivision of land, (c) the erection of a building, (d) the carrying out of a work, (e) the demolition of a building or work, (f) any other act, matter or thing that may be controlled by an environmental planning instrument. (2) However, development does not include any act, matter or thing excluded by the regulations (either generally for the purposes of this Act or only for the purposes of specified provisions of this Act). (3) For the purposes of this Act, the carrying out of development is the doing of the acts, matters or things referred to in subsection (1). … Part 4 Development assessment and consent Division 4.1 Carrying out of development—with consent, without consent and prohibited 4.1 Development that does not need consent (1) General If an environmental planning instrument provides that specified development may be carried out without the need for development consent, a person may carry the development out, in accordance with the instrument, on land to which the provision applies. (2), (3) (Repealed) 4.2 Development that needs consent … (5) Complying development An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development. … 4.3 Development that is prohibited If an environmental planning instrument provides that— (a) specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land. … Division 4.5 Complying development … 4.26 Carrying out of complying development (1) A person may carry out complying development on land if— (a) the person has been issued with a complying development certificate for the development, and (b) the development is carried out in accordance with— (i) the complying development certificate, and (ii) any provisions of an environmental planning instrument, development control plan or the regulations that applied to the carrying out of the complying development on that land at the time the complying development certificate was issued. … 4.27 What is a "complying development certificate"? (1) Terms of complying development certificate A complying development certificate is a certificate— (a) that states that particular proposed development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with other requirements prescribed by the regulations concerning the issue of a complying development certificate, and (b) in the case of development involving the erection of a building, that identifies the classification of the building in accordance with the Building Code of Australia. (2) A complying development certificate may indicate different classifications for different parts of the same building. (3) Erection of buildings A complying development certificate that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the application for the complying development certificate, subject to section 6.9. … (5) Other requirements for complying development certificates The regulations— (a) may impose other requirements concerning the issue of complying development certificates, and (b) may provide for the form in which a complying development certificate is to be issued. (5A) A complying development certificate has no effect to the extent that it requires a compliance certificate to be obtained in respect of any development. (6) For the purposes of this section, development standard includes a provision of a development control plan that would be a development standard, within the meaning of section 1.4, if the provision were in an environmental planning instrument. … 4.28 Process for obtaining complying development certificates (1) An applicant may, in accordance with the regulations, apply to a council or registered certifier for a complying development certificate. (2) The regulations may specify the kind of development for which a registered certifier is not authorised to issue a complying development certificate. (3) Evaluation The council or registered certifier must consider the application and determine— (a) whether or not the proposed development is complying development, and (b) whether or not the proposed development complies with the relevant development standards, and (c) if the proposed development is complying development because of the provisions of a local environmental plan, or a local environmental plan in relation to which the council has made a development control plan, that specifies standards and conditions for the complying development, whether or not the proposed development complies with those standards and conditions. … (6) Determination The council or a registered certifier may determine an application— (a) by issuing a complying development certificate, unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions, or (b) by refusing to issue a complying development certificate. (7) The council or a registered certifier must not refuse to issue a complying development certificate if the proposed development complies with the development standards applicable to it and complies with other requirements prescribed by the regulations relating to the issue of a complying development certificate. … 4.31 Validity of complying development certificate Without limiting the powers of the Court under section 9.46(1), the Court may by order under that section declare that a complying development certificate is invalid if— (a) proceedings for the order are brought within 3 months after the issue of the certificate, and (b) the certificate authorises the carrying out of development for which the Court determines that a complying development certificate is not authorised to be issued. … 1. I note that in Trives CA the Court of Appeal determined that the EPA Act as then in force in requiring the characterisation of development as complying development was not stipulating a matter which the Court could determine for itself as a jurisdictional fact. Rather the Court could determine by judicial review the state of satisfaction of the certifier of matters relevant to determining if development was complying. The effect of s 4.31 is to permit what was not permitted in Trives CA so that the Court can determine that a CDC is not authorised. Environmental Planning and Assessment Regulation 2000 (NSW) 1. The relevant sections of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regs) state: Part 7 Procedures relating to complying development certificates Division 1 Applications for complying development certificates … 126 Making application for complying development certificate (1) An application for a complying development certificate must— … (b) contain all of the information that is specified in the approved form or required by the Act and this Regulation… … Schedule 1 Forms … Part 2 Complying development certificates … 4 Documents to accompany application for complying development certificate (1) An application for a complying development certificate must be accompanied by the following documents— (a) a site plan of the land, (b) a sketch of the development, (c) if the development involves a change of use of a building (other than a dwelling-house or a building or structure that is ancillary to a dwelling-house and other than a temporary structure)— … (d) if the development involves building work (including work in relation to a dwelling-house or a building or structure that is ancillary to a dwelling-house)— (i) a detailed description of the development, and (ii) appropriate building work plans and specifications… State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) 1. The relevant sections of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (Codes SEPP) state: Part 1 General Division 1 Preliminary … 1.5 Interpretation—general (1) In this Policy— … ancillary development, in Parts 1, 2, 3A and 4, means any of the following that are not exempt development under this Policy— (a) access ramp, (b) awning, blind or canopy, (c) balcony, deck, patio, pergola, terrace or verandah that is attached to a dwelling house, (d) basement, (e) carport that is attached to a dwelling house, (f) detached studio, (g) driveway, hard stand space, pathway or paving, (h) fence or screen, (i) garage that is attached to a dwelling house, (j) outbuilding, (k) rainwater tank that is attached to a dwelling house, (l) retaining wall, (m) swimming pool or spa pool and child-resistant barrier. … outbuilding means any of the following class 10a buildings under the Building Code of Australia— (a) balcony, deck, patio, pergola, terrace or verandah that is detached from a dwelling house, (b) cabana, cubby house, fernery, garden shed, gazebo or greenhouse, (c) carport that is detached from a dwelling house, (d) farm building, (e) garage that is detached from a dwelling house, (f) rainwater tank (above ground) that is detached from a dwelling house, (g) shade structure that is detached from a dwelling house, (h) shed. … (5) A reference in this Policy to a type of building or other thing is a reference to development for the purposes of that type of building or other thing. (6) Notes and diagrams included in this Policy do not form part of this Policy. … Division 2 Exempt and complying development … 1.17 What development is complying development? (1) Development that is specified in a complying development code that meets the standards specified for that development and that complies with the requirements of this Division for complying development is complying development for the purposes of this Policy. … 1.18 General requirements for complying development under this Policy (1) To be complying development for the purposes of this Policy, the development must— … (b) be permissible, with consent, under an environmental planning instrument applying to the land on which the development is carried out… … Part 3A Rural Housing Code Division 1 Development that is complying development under this code … 3A.5 Ancillary development (1) The erection of new ancillary development, or alterations or additions to existing ancillary development, is development specified for this code if the development is ancillary to a dwelling house and erected on a lot— (a) in Zone RU1, RU2, RU3, RU4 or RU6 that has an area of at least 4,000m2, or (b) in Zone R5. (2) Subclause (1) does not include development specified in the Housing Alterations Code. (3) Ancillary development that is permitted by a current complying development certificate may be erected on a lot— (a) if a dwelling house exists on the lot—at any time, or (b) if there is a current development consent or complying development certificate for the construction of a dwelling house on the lot—before the construction of the dwelling house. … Division 3 Development standards for this code … Subdivision 3 Building heights and setbacks 3A.15 Setbacks of dwelling houses and ancillary development from roads (2) A dwelling house and all ancillary development on a lot in the following zones must have a setback from the boundary with a primary road that is not a classified road of at least the following— … (c) if the lot is in Zone RU1, RU2, RU3 or RU6—50m. (3) A dwelling house and all ancillary development on a corner lot must have a setback from a boundary with a secondary road that is not a classified road of at least the following— … (b) if the lot is in Zone R5 and has an area of at least 4,000m2, or is in Zone RU1, RU2, RU3, RU4 or RU6—10m. … 3A.18 Setbacks of outbuildings from side and rear boundaries An outbuilding, or alterations and additions to an existing outbuilding, must have a setback from a side or rear boundary of at least— (a) if the only purpose of the outbuilding is for agricultural use—10m, or (b) in any other case—5m. … Division 4 Conditions applying to complying development certificates under this code 3A.39 Conditions specified in Schedule 6 apply A complying development certificate for development specified under this code must be issued subject to the conditions specified in Schedule 6. … Schedule 6 Conditions applying to complying development certificates under certain complying development codes Part 1 Conditions applying before works commence 1 Protection of adjoining areas A temporary hoarding or temporary construction site fence must be erected between the work site and adjoining lands before the works begin and must be kept in place until after the completion of the works if the works— (a) could cause a danger, obstruction or inconvenience to pedestrian or vehicular traffic, or (b) could cause damage to adjoining lands by falling objects, or (c) involve the enclosure of a public place or part of a public place. 2 Toilet facilities (1) Toilet facilities must be available or provided at the work site before works begin and must be maintained until the works are completed at a ratio of one toilet plus one additional toilet for every 20 persons employed at the site. (2) Each toilet must— (a) be a standard flushing toilet connected to a public sewer, or (b) have an on-site effluent disposal system approved under the Local Government Act 1993, or (c) be a temporary chemical closet approved under the Local Government Act 1993. 3 Garbage receptacle (1) A garbage receptacle must be provided at the work site before works begin and must be maintained until the works are completed. (2) The garbage receptacle must have a tight fitting lid and be suitable for the reception of food scraps and papers. 4 Adjoining wall dilapidation report (1) If a wall on a lot is to be built to a boundary and there is a wall (the adjoining wall) on the lot adjoining that boundary that is less than 0.9m from that boundary, the person having the benefit of the complying development certificate must obtain a dilapidation report on the adjoining wall. (2) If the person preparing the report is denied access to the adjoining lot for the purpose of inspecting the adjoining wall, the report may be prepared from an external inspection of the adjoining wall. 5 Run-off and erosion controls Run-off and erosion controls must be implemented to prevent soil erosion, water pollution or the discharge of loose sediment on the surrounding land by— (a) diverting uncontaminated run-off around cleared or disturbed areas, and (b) erecting a silt fence and providing any other necessary sediment control measures that will prevent debris escaping into drainage systems, waterways or adjoining properties, and (c) preventing the tracking of sediment by vehicles onto roads, and (d) stockpiling top soil, excavated materials, construction and landscaping supplies and debris within the lot. 6 Tree protection measures (1) This clause applies to each protected tree and any other tree that is to be retained on a lot. (2) The trunk of each of the following trees must be provided with a tree guard that is comprised of hardwood timber panels each having a minimum length of 2m, minimum width of 75mm and minimum thickness of 25mm and secured, but not permanently fixed or nailed, to the tree and spaced a maximum of 80mm apart— (a) each tree that is within 6m of a dwelling house or any ancillary development that is to be constructed, and (b) each protected tree that is within 10m of a dwelling house or any ancillary development that is to be constructed. (3) Each protected tree that is within 6m of a dwelling house, outbuilding or swimming pool must have a fence or barrier that is erected— (a) around its tree protection zone as defined by section 3.2 of AS 4970—2009, Protection of trees on development sites, and (b) in accordance with section 4 of that standard. (4) The person having the benefit of the complying development certificate must ensure that— (a) the activities listed in section 4.2 of that standard do not occur within the tree protection zone of any tree on the lot or any tree on an adjoining lot, and (b) any temporary access to, or location of scaffolding within the tree protection zone of a protected tree or any other tree to be retained on the lot during the construction, is undertaken using the protection measures specified in sections 4.5.3 and 4.5.6 of that standard. (5) The tree protection measures specified in this clause must— (a) be in place before work commences on the lot, and (b) be maintained in good condition during the construction period, and (c) remain in place for the duration of the construction works. … Part 2 Conditions applying during the works ... 7 Hours for construction Construction may only be carried out between 7.00 am and 5.00 pm on Monday to Saturday and no construction is to be carried out at any time on a Sunday or a public holiday. 8 Compliance with plans Works must be carried out in accordance with the plans and specifications to which the complying development certificate relates. 9 Maintenance of site (1) All materials and equipment must be stored wholly within the work site unless an approval to store them elsewhere is held. (2) Waste materials (including excavation, demolition and construction waste materials) must be managed on the site and then disposed of at a waste management facility. (3) Any run-off and erosion control measures required must be maintained within their operating capacity until the completion of the works to prevent debris escaping from the site into drainage systems, waterways, adjoining properties and roads. (4) During construction— (a) all vehicles entering or leaving the site must have their loads covered, and (b) all vehicles, before leaving the site, must be cleaned of dirt, sand and other materials, to avoid tracking these materials onto public roads. (5) At the completion of the works, the work site must be left clear of waste and debris. 10 Earthworks, retaining walls and structural support (1) Any earthworks (including any structural support or other related structure for the purposes of the development)— (a) must not cause a danger to life or property or damage to any adjoining building or structure on the lot or to any building or structure on any adjoining lot, and (b) must not redirect the flow of any surface or ground water or cause sediment to be transported onto an adjoining property, and (c) that is fill brought to the site—must contain only virgin excavated natural material (VENM) as defined in Part 3 of Schedule 1 to the Protection of the Environment Operations Act 1997, and (d) that is excavated soil to be removed from the site—must be disposed of in accordance with any requirements under the Protection of the Environment Operations (Waste) Regulation 2005. (2) Any excavation must be carried out in accordance with Excavation Work: Code of Practice (ISBN 978-0-642-785442), published in July 2012 by Safe Work Australia. 11 Drainage connections (1) If the work is the erection of, or an alteration or addition to, a dwelling house, the roof stormwater drainage system must be installed and connected to the drainage system before the roof is installed. (2) Any approval that is required for connection to the drainage system under the Local Government Act 1993 must be held before the connection is carried out. 11A Swimming pool safety If the work involves the construction of a swimming pool, a child-resistant barrier that complies with the requirements of the Building Code of Australia and AS 1926.1—2012, Swimming pool safety, Part 1: Safety barriers for swimming pools must be erected around that work during the construction. 11B Contamination discovered during works (1) If during works on the land comprising the lot, the land is found to be contaminated, within the meaning of the Contaminated Land Management Act 1997— (a) all works must stop immediately, and (b) the Environment Protection Authority and the council must be notified of the contamination. (2) Land is found to be contaminated for the purposes of this clause if the person having the benefit of the complying development certificate or the principal certifying authority knows or should reasonably suspect the land is contaminated. … 12 Archaeology discovered during works If any object having interest due to its age or association with the past is uncovered during the course of the work— (a) all work must stop immediately in that area, and (b) the Office of Environment and Heritage must be advised of the discovery. … 13 Aboriginal objects discovered during works If an Aboriginal object (including evidence of habitation or remains) is discovered during the course of the work— (a) all excavation or disturbance of the area must stop immediately, and (b) the person making the discovery must advise the Chief Executive (within the meaning of the National Parks and Wildlife Act 1974) of the discovery in accordance with section 89A of that Act. … 14 Vehicular access If the work involves the construction of a vehicular access point, the access point must be completed before the occupation certificate for the work on the site is obtained. 15 Utility services If the work requires alteration to, or the relocation of, utility services on, or adjacent to, the lot on which the work is carried out, the work is not complete until all such works are carried out. … Wollondilly Local Environmental Plan 2011 (NSW) 1. The relevant sections of the Wollondilly Local Environmental Plan 2011 (NSW) (Wollondilly LEP) state: Land Use Table Zone RU1 Primary Production 1 Objectives of zone • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To encourage diversity in primary industry enterprises and systems appropriate for the area. • To minimise the fragmentation and alienation of resource lands. • To minimise conflict between land uses within this zone and land uses within adjoining zones. • To provide for a range of land uses (including tourism-related uses) that support the agriculture industry. • To provide areas within which the density of development is limited in order to maintain a separation between urban areas. • To support sustainable land management practices and local food production. 2 Permitted without consent Extensive agriculture; Home occupations 3 Permitted with consent Agriculture; Air transport facilities; Animal boarding or training establishments; Aquaculture; Bed and breakfast accommodation; Cellar door premises; Cemeteries; Community facilities; Crematoria; Depots; Dual occupancies (attached); Dwelling houses; Environmental facilities; Environmental protection works; Extractive industries; Farm buildings; Farm stay accommodation; Flood mitigation works; Forestry; Funeral homes; Group homes; Home-based child care; Home businesses; Home industries; Home occupations (sex services); Information and education facilities; Intensive livestock agriculture; Intensive plant agriculture; Landscaping material supplies; Open cut mining; Places of public worship; Plant nurseries; Recreation areas; Research stations; Roads; Roadside stalls; Rural industries; Rural supplies; Rural workers' dwellings; Secondary dwellings; Signage; Transport depots; Truck depots; Veterinary hospitals; Water recreation structures; Water supply systems 4 Prohibited Any development not specified in item 2 or 3 … Dictionary ... car park means a building or place primarily used for the purpose of parking motor vehicles, including any manoeuvring space and access thereto, whether operated for gain or not. … farm building means a structure the use of which is ancillary to an agricultural use of the landholding on which it is situated and includes a hay shed, stock holding yard, machinery shed, shearing shed, silo, storage tank, outbuilding or the like, but does not include a dwelling. … Land and Environment Court Act 1979 (NSW) 1. The relevant sections of the Land and Environment Court Act 1979 (NSW) (LEC Act) state: Part 3 Jurisdiction of the Court … Division 3 Orders of conditional validity for certain development consents 25A Application of Division (1) This Division applies to— (a) a development consent granted, or purporting to be granted, under the Environmental Planning and Assessment Act 1979— (i) by the Minister, and (ii) whether before or after the commencement of this subsection, and (b) a development consent granted, or purporting to be granted, under the Environmental Planning and Assessment Act 1979— (i) by any other consent authority, and (ii) in respect of a development application made on or after the commencement of this subsection. (2) This Division extends to invalidity arising from any steps preliminary to the granting of a development consent to which this Division applies, whether those steps were taken, or should have been taken, by the Minister or any other consent authority, or by any other person or body. (3) In particular, this Division extends to invalidity arising from non-compliance with requirements declared to be mandatory requirements under section 4.60 of the Environmental Planning and Assessment Act 1979. (4) A reference in this Division to the Minister is a reference to the Minister responsible for the administration of the Environmental Planning and Assessment Act 1979. 25B Orders for conditional validity of development consents (1) The Court may, instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part, make an order— (a) suspending the operation of the consent in whole or in part, and (b) specifying terms compliance with which will validate the consent (whether without alterations or on being regranted with alterations). (2) Terms may include (without limitation)— (a) terms requiring the carrying out again of steps already carried out, or (b) terms requiring the carrying out of steps not already commenced or carried out, or (c) terms requiring acts, matters or things to be done or omitted that are different from acts, matters or things required to be done or omitted by or under this Act or any other Act. National Construction Code (Cth) 1. The Building Code of Australia (BCA) referred to in the EPA Act and Codes SEPP now forms part of the National Construction Code (Cth) (NCC). The relevant portions of the NCC state: Section A Governing Requirements Part A6 Building classification … A6.7 Class 7 buildings A Class 7 building is a storage-type building that includes one or more of the following sub-classifications: (1) Class 7a — a carpark. (2) Class 7b — a building that is used for storage, or display of goods or produce for sale by wholesale. … A6.10 Class 10 buildings and structures A Class 10 building includes one or more of the following sub-classifications: (1) Class 10a is a non-habitable building including a private garage, carport, shed or the like. (2) Class 10b is a structure that is a fence, mast, antenna, retaining wall or free-standing wall or swimming pool or the like. (3) Class 10c is a private bushfire shelter. … Schedule 3 Definitions … Carpark means a building that is used for the parking of motor vehicles but is neither a private garage nor used for the servicing of vehicles, other than washing, cleaning or polishing. … Private garage, for the purposes of Volume One, means— a. any garage associated with a Class 1 building; or b. any single storey of a building of another Class containing not more than 3 vehicle spaces, if there is only one such storey in the building; or c. any separate single storey garage associated with another building where such garage contains not more than 3 vehicle spaces. … Statement of Agreed Facts 1. The parties helpfully provided the following Statement of Agreed Facts (SOAF) dated 3 April 2023: The Land 1. The First, Second, and Third Respondents are the registered proprietors as tenants in common of land described as Lot 22 DP595037, known as 780 Cawdor Road, Cawdor NSW (the Land), and have been since 15 November 2019. 2. As at the date the First, Second, and Third Respondents purchased the Land, the following structures existed on the Land: a) a dwelling house occupying an area of about 458m2, including a verandah; b) a shed occupying an area of approximately 56m2, and c) two kidding pens. 3. The Land is and was at all material times within Zone RU1: Primary Production under the Wollondilly Local Environmental Plan 2011 (WLEP). The CDC 4. On 2 February 2021, the First Respondent lodged an application for a complying development certificate with Vast Consulting Group Pty Ltd ("Vast") in respect of development on the Land described in that application as "Construction of a Detached Shed". 5. On 28 October 2021, the Fourth Respondent issued complying development certificate 1230/01 to the First Respondent ("CDC"). The CDC purports to authorise the carrying out of development on the Land described in the CDC as "Construction of a Detached Shed", subject to conditions. 6. The CDC incorporated certain plans and specifications listed in Schedule 1 of the CDC. These included (inter alia): a) the Endorsed Architectural Plans ("Architectural Plans"), being i. Master Site Plan Revision B-2 dated 16/12/2020 prepared by Design Concepts Sydney ("the Master Site Plan") and ii. iEZIBIL-856525-1 Drawings 01 and 02 dated 16/12/2020 prepared by EZI Built Steel Homes and Sheds; and b) the Endorsed Structural Plans EZIBIL-856525-1 ("Structural Plans"), prepared by Graeme Moulston and Associates Engineering, being: i. Drawing 01 revision B dated 28/7/2021; and ii. Drawings 02-23 Revision A dated 15/7/2021. 7. The Master Site Plan depicts a Shed 23.2m wide and 60m long, which is oriented on the Land in an east-west direction. The area of the Shed is 1,392m2. 8. The plan titled "Contract Plans for a Shed 23.2M x 60.0M x 3.8M", Drawing No, 01, Rev 1, dated 7 October 2021, which forms part of the Architectural Plans depicts a shed with a height of 3750mm. 9. Drawing Numbers 06–09 and 11–12, dated 17 July 2021, which form part of the Structural Plans depict a shed with a height of 5470mm. 10. Note G1 of the 'General Notes and Specifications' that accompany the Structural Plans says: Read these notes in conjunction with architectural and other engineering drawings and specifications, and as such other written instructions as may be issued. Refer to architectural drawings for setting out and detail dimensions. In case of discrepancy, precedence is given to drawings, then notes then specification. 11. While the CDC was issued with an attachment setting out some conditions, the documents attached did not expressly include the conditions specified in Sch 6 of State Environmental Planning Policy (Exempt and Complying Development) 2008. Unauthorised works Complaint to the Applicant on 10 November 2021 and response 12. In about November 202[1], the First Respondent constructed a driveway from Cawdor Road to the location of the proposed shed without consent. 13. In about November 2021, the First Respondent laid down the perimeter foundations and piers for a shed (including the installation of the steel reinforcing mesh). The foundations for a shed were oriented in a North-South orientation which is inconsistent with the CDC. 14. On or about 10 November 2021, the Applicant, Wollondilly Shire Council ("the Council") received a complaint from a member of the public in relation to truck movements to the Land and fill material being placed on the Land. 15. On 16 November 2021, … [Mr] McEwan, a Senior Compliance Officer of the Council, commenced an investigation into the complaint. Inspection of the Land on 17 November 2021 and subsequent correspondence 16. On 17 November 2021, at about 1:00pm, Mr McEwan attended the Land to carry out an inspection.10 On the Land, Mr McEwan observed building foundation earthworks, steel reinforcement and formwork ("Building Pad"). 17. Mr McEwan estimated that the Building Pad was oriented in a north-south direction, was about 65m long and 29m wide. The steel reinforcement and formwork was placed on top of fill material that was about 1.1 – 1.2 m above ground level at the northern end of the Building Pad. Fill material surrounded the perimeter of the steel reinforcement and formwork. 18. The First Respondent ("Mr Kennedy") and a man who identified himself as … [Mr] Herzig were present at the Land during Mr McEwan's inspection. 19. During the inspection Mr Kennedy stated the following in respect of the orientation of the Building Pad: I've run the shed this way because I didn't want a big monstrosity and people saying, "Oh, look at that eyesore," or whatever. It's not going to be an eyesore. I've got my plants and all that works out that are going to be quick grow to that end. My daughter will have a house there too. 20. During the inspection, Mr Herzig stated to Mr McEwan in the presence of Mr Kennedy: I know he's got a lot of expensive cars that he collects and that's what he's building the thing for, to show the cars he showed you, and that's what he wants it for to store his cars in one location that he can enjoy them, I suppose. Mr Kennedy then stated: David my last place I started with a shed then filled it. Went to another one, you know Fords, are you into cars, are you? 21. On 18 November 2021, Mr McEwan received an email from Mr … Sharma of Vast Consulting Group Pty Ltd attaching a copy of the CDC and stating that Mr Sharma had advised the First Respondent and tradespeople that they were not to continue with any works on the Land until a building information certificate had been approved by the Council for the works that have been completed on the Land. 22. At about 5:04pm on 22 November 2021, Mr McEwan sent an email to the First and Third Respondents, and copied to Mr Sharma which suggested (among other matters) that the First and Third Respondents should talk to the Council's duty planner as a building information certificate and development application may be required for the Shed if it were to remain in its current location and proposed form. 23. On 23 November 2021 at about 9:02am, Mr McEwan received an email from the Mr Kennedy stating: All work has stopped on the shed. I will contact the duty planner as suggested. 24. On 7 December 2021, at the Council's instruction, … [Mr] Zoppo of Lindsay Taylor Lawyers sent a letter in the same terms to each of the First, Second, and Third Respondents regarding the Council's position in respect of the validity of the CDC, and inviting them to surrender the CDC. 25. On 13 December 2021 at about 7:27pm, the First Respondent sent Mr McEwan an email forwarding his response to Mr Zoppo's letter of 7 December 2021. In that email, the First Respondent had confirmed the workers had continued laying sheets of steel "of their own bat", but that "nil work [had] been performed since". 26. On 14 December 2021 at about 11:43am, Mr McEwan received an email from Mr Sharma stating (inter alia): Just wanted to give you notify you [sic] that the CDC 1230/01 is withdrawn. The owner will be submitting a DA for the shed and BIC for works that have been completed so no works will be carried out under the Complying Development Certificate. Meeting between Council officers and Mr Kennedy 27. On 20 December 2021, the First Respondent sent an email to … [Mr] Strassmeir, an officer of the Council then employed as a Senior Development Assessment Planner, which stated in part: I am desirous of a meeting with you and your people re building permission and your requirements in order to build my shed. Hopefully we can meet this week. 28. On 22 December 2021 at 8:30am, the Council's Team Leader, Building Approval and Certification, … [Mr] Harris and Mr Strassmeir attended a meeting with the First Respondent at the Applicant's offices. 29. At 2:49pm that day, Mr Strassmeir sent Mr Kennedy an email confirming that if the Mr Kennedy wished to proceed with the construction of one or more sheds for the storage of his personal cars at the Land then a development application would need to be submitted to the Council. Commencement of proceedings 27.[sic] These proceedings were commenced on 27 January 2022. 28.[sic] On 6 April 2022, Mills Oakley issued a letter to Lindsay Taylor Lawyers. The letter included (amongst other things) the following text: The First Respondent admits that works have taken place on the site, other than in accordance with the CDC. The First Respondent apologises to the Applicant for this situation. Undertakings given by the First to Third Respondents 29.[sic] On 21 – 22 April 2022, the First, Second and Third Respondents provided to the Council in writing undertakings that they would not carry out the following works on the Land: a) further works under the CDC; or b) further unauthorised works including the construction of a driveway or earthworks. The undertakings do not extend to works that may be required on the Land which either do not require development consent or are exempt development under the applicable planning instrument. Inspection of the Land on 2 August 2022 30. On 2 August 2022, Mr McEwan inspected the Land accompanied by … [Mr] Tuckwell, NSW Operations Manager of Landair Surveys. 31. Mr McEwan observed that all of the reinforcing steel for the slab was laid across the formwork, but it did not appear to him that any further works had been undertaken in respect of the Shed and Building Pad since his inspection on 17 November 2021. Mr Kennedy's evidence regarding the purpose of the shed 32. Mr Kennedy deposes in his affidavit dated 2 February [2023] as follows: I also wanted to build a new shed for myself to store my collection of historic trucks, cars and motorbikes as well as machinery for the regular upkeep of the land including my tracker, slashers, ride-ons, forklift and excavator. (Par 11) The shed will be used to store my historic trucks, cars and motorbikes which are worth approximately $4.3 million in total. The shed in necessary to prevent my historic collection from being exposed to the elements (including wind, rain and hail). (Par 34) Collectively, I have about 98 historic trucks, cars and motorbikes. (Par 35) The shed the subject of the CDC will not be big enough to house all my historic trucks, cars and motorbikes. I will need to sell some or seek approval for more sheds to store the remainder of my historic trucks, cars and motorbikes on the land. (Par 36) A portion of the shed will also be used to store machinery including my tractor, slashers, ride-ons, forklift and excavator. The machinery is needed for the regular upkeep of the land. The shed will prevent the machinery from being exposed to the elements (including wind, rain and hail). (Par 50) Expert Survey Report 33. Mr … Birzulis, an expert surveyor, has surveyed the area of the Land occupied by the Building Pad and its surrounds and has found as follows: a) the volume of the Building Pad is 1,310m3 with a maximum depth of fill of 1.22 metres at the northern end of the Building Pad, and b) the Building Pad is oriented north south and has dimensions of 22.2 m wide and 60 m long. 34. Mr Birzulis plotted the position of the shed the subject of the CDC based on the Architectural Plans and overlayed this position on to his survey plan of the Building Pad. This is shown in Figure 6 of Mr Birzulis' expert report (Annexure A). Issues 1. The Council's list of issues for determination provides as follows: "Codes SEPP" means State Environmental Planning Policy (Exempt and Complying Development) 2008; "CDC" means Complying Development Certificate 1230/01 issued by the Fourth Respondent to the First Respondent on 28 October 2021; "Land" means land described as Lot 22 in DP 595037, known as 780 Cawdor Road, Cawdor, NSW; "LEP" means the Wollondilly LEP 2011; and "Shed" means the structure which the CDC purports to authorise be constructed on the Land. 1) Whether the CDC purports to authorise the carrying out of development which does not constitute complying development within the meaning of cl 3A.5 of Part 3A "Rural Housing Code" for any of the following reasons: a) the CDC does not identify the purpose of use for the Shed [ground 1]; b) alternatively to a), the Shed is for the purpose of a car park as defined in the LEP [ground 3]; c) further or alternatively to a) and b) above, the Shed is not ancillary to a dwelling house on the Land by reason of its size and scale, or the number of vehicles it can accommodate [ground 4]; or d) further or alternatively to a)-c) above, the Shed is not an "outbuilding" for the purposes of the Codes SEPP by reason of its classification under the National Construction Code (formerly, the Building Code of Australia) [ground 5]. 2) To the extent that the Fourth Respondent determined that the development the subject of the CDC was complying development, was that determination, in the circumstances, unreasonable [ground 2]? 3) Whether the CDC is invalid as it was not issued subject to the conditions specified in Sch 6 of the Codes SEPP [ground 6]. 4) Whether the CDC is uncertain and lacks finality as: a) the height of the Shed shown in the approved architectural plans differs from the height of the Shed shown in the approved structural plans; or b) further or alternatively to a), the CDC purports to approve plans which are not correctly or precisely identified in the CDC [ground 7]. 5) On the basis of the conclusions as to the matters in paragraphs 1)-4) above, is the CDC liable to be declared invalid? 6) If there is a basis for the CDC to be declared invalid, whether the Court should exercise its discretion to withhold the relief sought by the Applicant? 1. The parties agree that s 4.31 of the EPA Act may enable the Court to consider grounds 1, 3-5. Ground 2 is a judicial review ground (unreasonableness) which arises as an alternative to ground 1 and does not rely on s 4.31. Ground 6 is a discrete issue concerning the validity of the CDC, as is ground 7. These two grounds do not rely on s 4.31. 2. Whether the Court considers grounds 3-5 depends on the resolution of the Court's task under s 4.31. Grounds 3-5 rely on conversations that occurred after the CDC was granted. I will return to this topic below in [85]. 3. In any proceedings brought within the time limit in s 4.31(a) the Court may: 1. determine for itself whether a complying development certificate was authorised to be issued in respect of the carrying out of the particular development; and 2. if the answer to (a) is negative, the Court has the discretion to declare the relevant certificate to be invalid. EVIDENCE Council's evidence 1. The Council read the following affidavits: 1. Mr McEwan senior compliance officer of the Council dated 16 August 2022; and 2. Mr Strassmeir senior strategic planner of the Council dated 18 August 2022. 1. Mr McEwan investigated the development activity on the Land. The details of the complaint made to Council and his investigations are set out in the SOAF above in [13] at pars 12-26. 2. Mr Stassmeir had communications and a meeting with Mr Kennedy about the Council's requirements for building the shed as set out above in [13] of the SOAF at pars 27-29. 3. The Council tendered the following exhibits: 1. The evidence book including the Council's bundle of documents (Ex A); 2. A real estate listing for the Land including 11 photographs and a site plan (Ex B); 3. A copy of the building permit application and executed permit including plans and specifications for the existing dwelling on the Land (Ex C); and 4. A floor plan of how the shed is intended to be used by Mr Kennedy (Ex D). 1. The Council's bundle of documents in Ex A included the application for the CDC, the CDC and other relevant documents. Application for Complying Development Certificate 1. The application lodged for the CDC by Mr Kennedy dated 2 February 2021 is attached to this judgment as Appendix A. Complying Development Certificate 1. The CDC issued to Mr Kennedy on 28 October 2021 is attached to this judgment as Appendix B. A summary of the relevant plans and conditions incorporated in the CDC is in the SOAF set out above in [13] at pars 6-11. Letter issuing Complying Development Certificate 1. Mr Sharma chief executive officer Vast Consulting Group Pty Ltd sent a letter dated 28 October 2021 to Mr Kennedy enclosing the CDC. The relevant portion of that letter is extracted below: Vast Consulting Group Pty Ltd has issued a Complying Development Certificate under Part 4 of the Environmental Planning and Assessment Act 1979 for the above premises. Please find enclosed the following documentation: • Complying Development Certificate No. 1230/01 • Copy of the application for the Complying Development Certificate. • Documentation used to determine the application for the Complying Development Certificate as detailed in Schedule 1 of the Certificate. • Council's registration fee. Mr Kennedy's evidence Affidavit of Mr Kennedy 1. Mr Kennedy affirmed an affidavit on 2 February 2023. Mr Kennedy, Mr Hobson and Ms Hobson purchased the Land in 2019. Mr Kennedy and his de-facto wife reside in the dwelling house on the Land. Mr Kennedy stated he and Mr and Ms Hobson planned to extend the dwelling house and build two sheds at the time of purchase. Mr Kennedy would use one shed and the Hobsons would have use of the other shed. Eventually Mr and Ms Hobson decided not to proceed with the dwelling extension and the construction of their shed. 2. Mr Kennedy engaged Everlast Buildings Pty Ltd in about December 2019 to design and supply a shed. At the same time, Ms Hobson engaged Vast Consulting Pty Ltd to issue a CDC for the construction of a detached shed. Ms Hobson was responsible for the preliminary discussions with Mr Sharma. 3. Mr Kennedy's evidence regarding the purpose of the shed is as set out in the SOAF above in [13] at par 32. He does not intend to use the shed for commercial purposes. He has been collecting historic trucks, cars and motorbikes as a hobby for over 30 years. He is a member of a Ford Car Club and Historic Truck Club. 4. Mr Kennedy currently rents three sheds in Cawdor to store part of his historic trucks, cars and motorbikes collection. He also stores some vehicles in a garage on a property owned by his de-facto wife. He stated the shed will be a secure storage facility and once constructed would save him approximately $13,215 including GST a month in rent. 5. On 28 September 2021 Mr Sharma sent an email to Everlast Building Pty Ltd and Mr Kennedy annexed to Mr Kennedy's affidavit, informing them the height limit for the shed was 4.8m from ground level. Mr Sharma stated the height could only be 7m if the building was ancillary to a farm use. 6. On 14 October 2021 Mr Kennedy received an email from Mr Sharma attaching a copy of the draft plans for the shed. In that email he advised Mr Sharma and Everlast Buildings Pty Ltd inter alia that Mr Hobson and Ms Hobson were not proceeding with the house extension and not to include the house plan in the application if it would prevent the shed being certified. Affidavit of Ms Hobson 1. Ms Hobson affirmed an affidavit on 2 February 2023. On about December 2019, Mr Hobson and Ms Hobson engaged Vast Consulting Pty Ltd to issue a CDC for a new dwelling and two new sheds. Mr Hobson and Ms Hobson planned to extend the existing dwelling. In a telephone conversation with Mr Sharma on about December 2019, Ms Hobson stated words to the following effect: "We need two new sheds to store our personal belongings. Dad has engaged Dural Sheds for the design and supply of the sheds. The sheds will not be used for our trucking business. There are offsite facilities to store the trucks. My dad has multiple personal vehicles including trucks, cars and bikes that will be stored in one of the sheds." 1. On or about 26 April 2021 Mr Hobson and Ms Hobson decided not to proceed with the house extension and one of the sheds. They informed Mr Sharma of their decision via text message on that date. Ground 1 absence of purpose 1. The consideration by the Court of ground 1, alleging an absence of any specified purpose for the development the subject of the CDC, is enabled by s 4.31 of the EPA Act. Subsection (b) enables the Court to determine whether a CDC is authorised to be issued. 'Authorisation' suggests the Court can review the legislative requirements for the issuing of a CDC, which includes the requirements in Div 4.5 of the EPA Act (including s 4.28(3)) and the application of the Codes SEPP, relevantly cl 1.18(1)(b), by virtue of s 4.26(1)(b)(ii) of the EPA Act, see also Hills Shire Council v Drenovac [2022] NSWLEC 139 (Drenovac) at [91] in obiter. 2. Essentially two aspects arise for consideration. Firstly, the appropriate approach to the construction of the CDC to determine if it lacks reference to a purpose. Secondly, if it lacks reference to a purpose does that have a legal consequence of invalidity? Construction of complying development certificate 1. As part of determining the issue of whether the CDC is invalid because it does not identify a purpose, the issue of the construction of the CDC arises, in relation to which the parties made conflicting submissions. Council's submissions 1. The certifier who issued the CDC was Mr Barnett not Vast Consulting Pty Ltd. The Council submits that the only material that should be considered in construing the CDC are the CDC and the application for the CDC. The application for the CDC can be considered in light of s 4.27(3) of the EPA Act. Principles analogous to the construction of development consents should be applied as a CDC is also a statutory instrument, Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 (Australian Native Landscapes) at [39]-[48]. 2. The CDC does not specify any purpose for the use of the shed, nor does the application (see Appendix A). The Council submits that the statements made to various persons before the CDC was issued relied on by Mr Kennedy cannot be used to construe the application or the CDC. No such statements form part of the application or are incorporated expressly or by necessary implication into the CDC. 3. In reply to the First Respondent's submissions below in [43], there is nothing in section P of the application that indicates the proposed development was ancillary to the dwelling. Section P includes a mere statement that there is one existing dwelling on the Land, and an incorrect statement that the new building will include a dwelling. As part of section G, the form expressly disclaims that the development includes a structure ancillary to a dwelling-house and states that that involves work other than work in relation to a building or structure that is ancillary to a dwelling house. Such express statements demonstrate conclusively that the proposed development was not identified as 'ancillary' such as to fall within cl 3A.5 of the Codes SEPP. Mr Kennedy's submissions 1. Mr Kennedy submitted orally that the CDC should be construed in light of material known to the Certifier about the use of the shed before the issuing of the CDC. Information may be known as part of an application document or otherwise made known to the Certifier. There is nothing in the scheme for complying development that restricts or makes legally irrelevant information communicated to a certifier. The principles in Australian Native Landscapes apply in a different context to the task before the Court and should not be strictly applied. These principles are used to construe development consents once they have been granted. In this case the inquiry is whether the Certifier understood that the proposed development was ancillary to a dwelling house before the issue of any development consent for the purposes of cl 3A.5. 2. This ground asserts that there was no information on which a determination that the shed was ancillary to a dwelling house could be made. Information was known to the Certifier to substantiate that the shed was ancillary to a dwelling house. 3. As the CDC reflects the oral and written communications between Mr Kennedy, Ms Hobson and Mr Sharma before the CDC was issued summarised above at [27], [30]-[31], [32]-[33], the inference can be safely drawn that the Certifier was aware of the purpose of the shed the subject of the CDC at the time he issued the CDC. The Certifier works for Vast Consulting Pty Ltd and Mr Sharma is the managing director of that company. Mr Sharma was aware of the purpose of the shed the subject of the CDC due to Ms Hobson's statement to him set out above in [32]. Together with the timing of emails close to the issue of the CDC the reasonable inference can be drawn that the Certifier was aware of the purpose of the shed at the time he issued the CDC. 4. In any case, there was information to indicate the shed would be ancillary to the existing dwelling. The application form for the CDC included the completion of section P (see Appendix A), sufficient to indicate the development was ancillary to a dwelling-house. An applicant is instructed to complete section P if the development involves building work including work in relation to a dwelling-house or a building or structure that is ancillary to a dwelling-house. Put as a yes or no question, Mr Kennedy concedes he ticked no before proceeding to complete section P as depicted in the image below. Consideration of construction of complying development certificate 1. The CDC dated 28 October 2021 is Appendix B to this judgment. It states that the development proposed is 'construction of detached shed'. The certifier is the Fourth Respondent Mr Barnett. The application for the CDC signed by Mr Kennedy is Appendix A. The application form includes various boxes in which an applicant can insert a cross to respond to the questions posed. 2. Development consent as defined in s 1.4 of the EPA Act includes a CDC unless expressly excluded. The CDC is a statutory instrument and the well-established principles identified in Australian Native Landscapes and Hy-Tec Industries (Queensland) Pty Ltd v Tweed Shire Council [2019] NSWLEC 175 at [45]-[49] inter alia developed in the context of development consents should also be applied to the construction of a CDC. No statutory basis in the EPA Act or elsewhere exists to exclude a CDC from development consent in terms of construction. A CDC operates in rem and should be clear on its face or at the most by reference to documents otherwise incorporated into it in limited circumstances. Principles of construction helpfully set out in Australian Native Landscapes include: 39. "The nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the council. Thus evidence of the nature of the site would always be admissible for this purpose, as would be, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks": Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 at 637 (Hope JA). 40. A development consent is to be construed according to its terms, having regard to its enduring nature. A development consent has an enduring nature because it is not personal to the applicant but is a public document operating in rem for the benefit of third parties such as subsequent owners, occupiers and security holders, and in some respects is equivalent to a document of title: House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44, 48 NSWLR 498 at [23]; Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17, 130 LGERA 508 at [4]: Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277 19 LGRA 321 at 324 (Else-Mitchell J). The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money acting upon it who and is likely to wish to sell the land sooner or later: House of Peace at [41]. 41. A development consent is to be construed not as a document drafted with legal expertise, but to achieve practical results: Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 at [36]; Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160, 167 LGERA 395 at [96]-[99] and [105]. 42. Any lack of clarity or certainty in a council development consent is the responsibility of the council and it must take the consequences: Royal Ryde Homes at 324. 43. As a development consent is a document in rem, communications between the parties do not form part of the matrix relevant to construction: Westfield Management at [41]. 44. As a general rule, a development consent, being a public document operating in rem for the benefit of third parties, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. That extrinsic evidence is not led to vary the consent but to identify a thing or place referred to in it. Evidence as to the nature or physical features of the land may also be admissible for that purpose, at least those features observable by a third party at the time of the consent: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103, 195 LGERA 182 at [44]; Shell Co of Australia at 637. … 46. Plans and other documents may be incorporated in a development consent expressly or by necessary implication: Allandale at [24], [43]-[48], [153]-[163]. A document attached to a development consent or referred to in it for the purpose of identifying or describing something dealt with in the consent, will for that reason be expressly incorporated in the consent: Allandale at [45]… 47. The ordinary rules of construction and principles of interpretation apply to a development consent as with any other statutory instrument: Ko-veda at [97]-[99]. Like all legal documents, a development consent must be read as a whole. The effect of doing so may be to depart from the material and ordinary meaning of the words of one provision, where it is necessary to do so to avoid absurdity or inconsistency with the rest of the instrument: Tempe Recreation at [53]-[54]. … 1. Applying these principles particularly at [43] citing Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 (Westfield Management) and at [44] citing Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103, Shell Co of Australia Ltd v Parramatta City Council (No 2) (1972) 2 NSWLR 632 extrinsic evidence such as conversations and emails between people before a CDC is issued cannot assist in construing the CDC. Consequently, the construction of the CDC as submitted by the Council is to be preferred so that the CDC lacks a purpose on its face or by implication. 2. Mr Kennedy relied on the following events above in [42]: 1. In about December 2019 Mr Kennedy engaged Everlast Buildings Pty Ltd and Ms Hobson engaged Vast Consulting Pty ltd. 2. In a telephone conversation in about December 2019, Ms Hobson made a statement to Mr Sharma set out above in [32] that one of the sheds would be used to store personal belongings, specifically Mr Kennedy's personal vehicles. 3. On 2 February 2021 Mr Kennedy lodged an application for the CDC. 4. On or about 26 April 2021, Mr Hobson and Ms Hobson decided not to proceed with the house extension and one of the sheds. They informed Mr Sharma of their decision via text message on that date. 5. On 28 September 2021 Mr Sharma sent an email to Everlast Building Pty Ltd and Mr Kennedy informing them of the height limit for the shed, being 4.8m from ground level, or 7m if ancillary to a farm use. 6. On 14 October 2021 Mr Sharma and Mr Kennedy communicated by email regarding the draft plans for the shed. Mr Kennedy advised that Mr Hobson and Ms Hobson were not proceeding with the house extension and not to include the house plan in the application if it would prevent the shed being certified. 7. On 28 October 2021 Mr Sharma sent a letter to Mr Kennedy enclosing the issued CDC. 1. The various circumstances immediately above which Mr Kennedy relied on to establish that the purpose of the shed was Mr Kennedy's hobby of storing his vehicle collection cannot be relevant to construe the CDC. 2. In any event there is no evidence that the Certifier was informed directly or indirectly of the purpose of the shed. The course of events in the evidence of Mr Kennedy and conversations relied on by Mr Kennedy between Ms Hobson and Mr Sharma before the issuing of the CDC, set out above in [47], do not give rise to any inference that the Certifier was aware of the purpose of the shed at the time he issued the CDC. 3. Mr Kennedy also relied on section P of the application. Section P is to be filled out if the question whether the building use was ancillary to a dwelling house is answered yes. I note that the question whether the building use was ancillary to a dwelling house in the application form was answered no. Viewing the application form as a whole while Section P was completed, which was only necessary if the answer to the earlier question was yes, the answers are ambiguous and do not assist in the construction of the CDC. I otherwise agree with the submissions of the Council set out above in [39] as to the overall effect of the application form. 4. Mr Kennedy is submitting an alternative case to what the Council is arguing, namely that the shed was ancillary to a dwelling house and that is the only relevant inquiry to be made. Regardless of how the shed should be considered which I discuss further in the next section, the construction of the CDC must be in accordance with the principles outlined above. 5. Accordingly I find that only the CDC and application can be relied on to construe the CDC in the circumstances of this case and these did not provide an indication of the intended purpose of the shed. I now consider the legal consequence of that finding. Purpose of shed 1. Does the absence of a purpose of the shed mean the shed was not authorised as complying development? Council's submissions The need for purpose 1. The Council understands that the CDC was issued in purported reliance on cl 3A.5 of Part 3A Rural Housing Code of the Codes SEPP. The Council submitted that the CDC must be underpinned by a purpose as otherwise the necessary assessment of permissibility of the development the subject of the CDC for the purposes of cl 1.18(1)(b) of the Codes SEPP cannot be undertaken. The tripartite classification of development in Pt 4 Div 4.1 ss 4.1-4.3 of the EPA Act turns on what sort of 'specified development' an environmental planning instrument provides may be carried out with or without development consent, or which is prohibited. The purpose of development informs that classification regardless of whether the permissibility derives from the WLEP or cl 3A.5 of the Codes SEPP. 2. Chamwell v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 (Chamwell)at 406-407 identifies that in planning law use of land must be for a purpose. The use of land involves no more than the physical acts by which the land is made to serve some purpose. The physical acts involved in erecting a building to be used for a purpose are the means by which the land is made to serve that purpose and the characterisation of land must be done at a level of generality necessary and sufficient to cover the individual activities, transactions or processes carried on. 3. Implicit in Chamwell is that construction of a structure that will achieve a use is achieving that purpose and that is the use of land for a purpose. In order to approve the construction of a shed the purpose for it must be established in order to assess permissibility. If consent could be granted for building works with no 'purpose', and no attendant 'use' of land, in circumstances where permissibility was regulated by purpose, it would create an absurd scenario whereby an applicant could apply for consent to carry out 'building works' to construct a building of unspecified purpose, and only apply for consent to use the building once construction was complete. It would then not be possible to establish what the appropriate development standards were against which the application to construct the building was to be assessed (for example, those applying to residential, commercial, retail, or industrial development). 4. This is the case when evaluating the permissibility of the shed under the WLEP. Unless the purpose for construction or use of the shed can be identified as being for a permissible purpose within the RU1 zone, it is prohibited. Where consent is sought for construction of a shed for an unspecified purpose, then permissibility under the WLEP cannot be established (for example a shed constructed for the purpose of a dwelling, farm building or rural industry would be permissible with consent, but a shed constructed for the purpose of storage premises would be prohibited). 5. This must also apply to determining whether development is capable of being approved as 'complying development' under the Codes SEPP. Characterisation as complying development under cl 3A.5 depends on the shed being identified as for a purpose 'ancillary to a dwelling house'. 6. It is acknowledged that in other parts of the Codes SEPP certain types of works and structures are deemed to be permissible without apparent reference to a separate purpose. This is particularly the case in relation to exempt development where works and structures that may in certain cases constitute exempt development and thus be carried out without consent, for example access ramps (cl 2.1), clothes hoists or clothes lines (cl 2.21) or driveways (cl 2.27). However, a test of purpose is retained for some items, for example awnings must be associated with a residential use (cl 2.9(a)) and stock holding yards must not be used for a habitable purpose and must be used for the purpose of short term storage or watering of stock (cl 2.32A). The shed lacks purpose 1. The shed lacks any specified purpose. No purpose is inherently incorporated in the term 'shed'. The CDC lacks reference to any purpose for the shed. As no purpose was specified in the application no use of the building has been authorised as provided for by cl 4.27(3). 2. The need for development for a specified item to have a purpose ancillary to a dwelling house to fall within cl 3A.5 is supported by the decision of Biscoe J in Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190 (Trives No 3), in particular at [68]. His Honour also rejected an argument that development which the definition of 'ancillary development' in the Codes SEPP applies to is necessarily 'ancillary to a dwelling house' at [66]. 3. Clause 1.5(5) of the Codes SEPP does not assist in prescribing a purpose other than the self-evident purpose of a 'shed'. This in itself is an insufficient purpose to establish that the shed is for a purpose 'ancillary to a dwelling house'. The substantial size of the shed described in the application, being 1,392m², means that one could not conclude without more information that any use would be limited only to activities 'ancillary to a dwelling house'. Indeed, if the application was to be construed as seeking use for the purpose of 'a shed' without limitation, this would self-evidently be contrary to the 'fundamental requirement' that the purpose be ancillary to a dwelling house, and no more. 4. If there is no purpose other than that of the building itself (a shed), then it must follow that it cannot be concluded that the shed is for a purpose ancillary to a dwelling house (and no other purpose). 5. The Court must therefore determine that the application did not seek consent for a shed that was 'ancillary to a dwelling house'. There being no basis other than cl 3A.5 to support the issue of the CDC, the Court may declare the CDC to be invalid. Mr Kennedy's submissions 1. The characterisation of the use of the shed was not identified as an issue in the Council's Amended Summons above in [4]. The only issue that requires determination in relation to grounds 1, 3-5 is whether the shed is ancillary to the dwelling house use that exists on the property, as enabled by cl 3A.5 of the Codes SEPP. The CDC was issued pursuant to cl 3A.5. The inquiry under cl 3A.5 does not require any characterisation of the development the subject of the CDC. Such characterisation occurs for the purposes of determining permissibility under cl 1.18 and once that has occurred need not arise again in relation to the later application of other sections of the Codes SEPP such as cl 3A.5. 2. The uncontradicted evidence is that the shed was to be constructed for use in conjunction with the use of the dwelling, per Mr Kennedy's evidence summarised above in [26]-[29]. [I note that in oral submissions Mr Kennedy did not seek to rely on statements made after the CDC was issued]. Finding on purpose 1. Mr Kennedy submitted that the issue of permissibility was not identified in the Amended Summons. While cl 1.18 of the Codes SEPP, which by virtue of subcl (1)(b) requires that complying development be permissible with consent under the WLEP, is not expressly identified in the Amended Summons this issue was opened on by the Council's counsel, considered extensively in the Council's written submissions provided beforehand to Mr Kennedy and does arise as a necessary inquiry in the application of the Codes SEPP in various grounds of review, including this ground. 2. Development consent may be obtained for complying development by the issuing of a CDC, as provided for in s 4.2(2)(b) of the EPA Act. Section 4.27 identifies the terms of a CDC. Subsection (3) provides that a CDC which permits the erection of a building also authorises the use of that building once erected for the purpose specified in the application for the CDC (subject to s 6.9 which has no present application). As already observed above in [52] the application lacked the identification of a purpose so that no approval of a use arises pursuant to cl 4.27(3). Section 4.28 specifies the relevant procedures for obtaining a CDC including evaluation by a consent authority or certifier under subs (3) of whether the proposed development is complying. Under cl 1.18(1)(b) of the Codes SEPP development must be permissible with consent under an environmental planning instrument, here the RU1 zone in the WLEP. 3. Mr Kennedy's submissions essentially seek to bypass the fundamental inquiry required by cl 1.18(1)(b) in relation to permissibility of development in order to be complying. Development which is not permissible in the relevant zone under the WLEP inter alia cannot be complying development for the purpose of cl 1.18(1)(b) of the Codes SEPP. The applicability of the WLEP Land Use Table for RU1 Primary Production zone arises squarely in relation to this ground of review. That the CDC was issued pursuant to cl 3A.5 (not apparent in any of the documents before the Court but accepted to be the case by the Council) does not mean that cl 1.18(1)(b) can be ignored. 4. As the Council submitted, a 'shed' has no obvious purpose as it can have many functions. To enable an assessment of permissibility by a decision-maker requires a purpose to be specified for it. As stated in Chamwell at 406-407 a use of land must have a purpose to enable the application of planning law. 5. The CDC has been issued for a shed which in the hands of the certifier had no purpose. That failure means that the permissibility of the shed cannot be determined as required by cl 1.18(1)(b) of the Codes SEPP. As a consequence the CDC has not been demonstrated to have been issued for a development that is permissible as required by the Codes SEPP, the evaluation required by s 4.28(3)(a) of the EPA Act was not able to be carried out and the CDC is not authorised to have been issued as a result, applying s 4.31(b) of the EPA Act. 6. As a result of the absence of a purpose in the CDC application Mr Kennedy does not have the benefit of cl 4.27(3) of the Codes SEPP authorising the use of the shed. 7. Mr Kennedy casts the issue differently to the Council in asserting the focus must be on whether the shed is ancillary to a dwelling house which I infer is the matter about which Mr Kennedy says the Certifier had to be satisfied rather than the purpose of the shed per se. If that was the Certifier's approach it nevertheless required the Certifier to consider the purpose of the shed in order to determine permissibility under the Codes SEPP. 8. Accordingly I find that the shed the subject of the CDC lacks a specified planning purpose. Consequently the development the subject of the CDC cannot be characterised as complying development which may be carried out on the Land for the purposes of s 4.26 of the EPA Act and the Codes SEPP. 9. The Council is successful on ground 1. Ground 2 unreasonableness 1. Ground 2, in the alternative to ground 1, is that the Certifier's determination that the CDC was for complying development was unreasonable. The Council relies on the same factual matrix, basically the content (or more accurately the lack of content) of the CDC and the application for the CDC in not identifying any purpose for the shed. I also note that the letter to Mr Kennedy from Mr Sharma dated 28 October 2021 (extracted above in [25]) which attached the CDC identified those matters taken into account in issuing the CDC. No party relied on this material. Council's submissions 1. Ground 2 does not rely upon s 4.31, but rather applies a test of reasonableness to the apparent satisfaction of the Certifier that s 4.28(3)(a) was met. Such a challenge falls within the scope of challenges available prior to the introduction of s 4.31, and formed the basis of Trives No 3. In such a review, the question for the Court is not (as in ground 1) whether the Court would have formed the same opinion, but whether the repository of power (that is, the Certifier) could have formed the opinion reasonably, Trives No 3 at [17], Drenovac at [79]. 2. A decision made in the exercise of a statutory power is unreasonable in a legal sense where it lacks an evident and intelligible justification, Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 at 367 per Hayne, Kiefel and Bell JJ, Minister for Immigration and Border Protection v SZVFW and ors (2018) 264 CLR 541; [2018] HCA 30 (SZVFW) at 573 per Nettle and Gordon JJ. A finding of legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence and an application of the relevant principles to the particular factual circumstances of the case, a task which, whilst evaluative, does not depend on the exercise of a discretion by the primary judge, SZVFW at 574 per Nettle and Gordon JJ. 3. In Trives No 3, Biscoe J reviewed the relevant principles in relation to unreasonableness generally, and in the context of the complying development provisions of the EPA Act in particular, including the former s 85A(3) (now substantially re-enacted as 4.28(3)) at [16]-[23]. His Honour concluded at [22]: 22. In the present case, if upon the application of the SEPP and the LEP, correctly construed, to the clear facts the decision is plainly unreasonable, the Court should infer that the decision-maker misinterpreted, failed to address or overlooked the requirements of those instruments or that in some other way there has been a failure to properly form the prerequisite state of satisfaction. 1. The reasoning in relation to ground 1 applies similarly to this ground. Without any specification of the nature of the proposed use of the shed, no reasonable certifier could form the view that the shed was for a purpose ancillary to the use of the dwelling house. As was the case in Trives No 3, even assuming that the relevant development fell within the definition of 'ancillary development' for the purposes of the Codes SEPP, if it could not be established that it was ancillary to the existing dwelling house, then it was unreasonable for the Certifier to conclude that the development the subject of the application was complying development. As a consequence, the CDC is liable to be declared invalid. Mr Kennedy's submissions 1. Mr Kennedy made similar submissions to ground 1 that the shed was ancillary to a dwelling house. The evidence of Mr Kennedy is that the shed will be used to store his collection of vehicles, his hobby and that use is therefore ancillary to the use of the dwelling house occupied by Mr Kennedy. 2. Mr Kennedy submitted that Biscoe J in Trives No 3 at [67] was responding to a different question or was wrong. Characterisation concepts do not need to be applied in cl 3A.5 of the Codes SEPP. Residents Against Improper Development Inc v Chase Property Investments Pty Ltd (2006) 149 LGERA 360 (RAID) is an example that one does not necessarily apply well understood concepts in planning law without considering carefully whether they need to apply in another context that deals with a different question and instrument. Finding on ground 2 1. In Trives No 3 the Court was considering, on remitter following Trives CA, the validity of a CDC based on the judicial review grounds of lack of certainty and finality and unreasonableness. For reasons addressed above in ground 1 I do consider the purpose of the shed must be relevant to the Certifier's determination. The question the Certifier had to address is not solely whether the shed is ancillary to a dwelling house without regard to consideration of its purpose. That being the correct approach I consider I should apply the reasoning of Biscoe J in Trives No 3 firstly in the interests of judicial comity. Secondly his Honour's analysis of the implicit requirement of reasonableness of a certifier's opinion that a CDC is valid at [16]–[20], [22], including where no statement of reasons has been provided at [21] is plainly correct. I applied his Honour's reasoning in this respect in Central Coast v 40 Gindurra Road (2019) LGERA 133 (Gindurra) at [63]-[64]. His Honour's conclusion at [67] is also correct. Applying that same reasoning in the circumstances of this case, in light of the absence of any evidence of the purpose for the shed being known to the Certifier it is not apparent that he arrived at the conclusion that the shed was permissible development in the RU1 zone on any reasonable basis. I accept the Council's submissions set out above in [78]-[80]. The applicability of RAID which addresses an entirely different circumstance is not apparent. 2. The Council is successful in relation to ground 2. Grounds 3-5 1. The parties agreed that s 4.31 of the EPA Act could apply to enable the consideration of grounds 3-5. 2. An evidentiary question first arises based on the Council's submissions. According to the Council the evidence it relies on in relation to grounds 3-5 is based on an alternative approach to the construction of a CDC to that argued by the Council in ground 1. In ground 1 I accepted the Council's argument that a CDC should be interpreted on its face and with reference to other documents only in limited circumstances, discussed above in [44]-[52]. In doing so I did not consider extrinsic evidence which focussed on occurrences before the CDC was issued was permissible. The evidence the Council seeks to rely on in relation to grounds 3-5 are statements made by Mr Kennedy after the issuing of the CDC concerning his intended use of the shed, see the SOAF above in [13] at pars 20, 32 and below in [92]. I am not completely clear about the attitude of Mr Kennedy's counsel on this evidentiary matter but my understanding is that he did not embrace considering evidence of matters after the CDC was issued. Regardless evidence directed to events after the issuing of the CDC was adduced by Mr Kennedy. 3. Related to this evidential question is the scope of s 4.31 proceedings. The section provides a relatively unconstrained power to the Court to determine that a CDC 'is not authorised to be issued' and declare it invalid. The section is somewhat unique in its drafting and the task conferred on the Court is not readily categorised beyond describing it as the exercise of a statutory power of review by the Court. I am not aware of any similar provision elsewhere in the EPA Act. The scope of s 4.31 was considered by me in Gindurra at [46], then in the context of whether it limited judicial review challenges under s 4.59. I found that it did not. Section 4.31 did not apply in Gindurra as the time frame in subs (a) was not met. 4. The determination which the Court may make under s 4.31 is analogous in some respects to deciding a jurisdictional fact although it is not expressed as consideration of a matter relevant to the exercise of jurisdiction by a certifier. While the Court is not deciding a matter of fact essential to the exercise of statutory jurisdiction, it is determining for itself whether the development which a CDC purports to authorise is development for which a CDC was authorised to be issued. This includes consideration and determination of the matters in s 4.28(3) which is headed Evaluation. 5. When determining matters of fact which go to the exercise of jurisdiction, the Court is not confined to the material which was before the original decision maker, Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 63; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at 16, 22, 25-26; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 at 724. Such an approach to evidence has resonance in the different context of s 4.31 as I discuss next. 6. Given the width of the statutory language in s 4.31 which refers to the present tense 'is' it appears open to the Court to receive material relevant to the question of authorisation up to the time the Court makes a decision. The Court is not necessarily limited to what was before a certifier given the breadth of its evaluative task under s 4.31. Material produced and events which occurred after a CDC was issued may be considered to undertake such an evaluation in my view. While the Council submitted doing so was contrary to the construction approach it advocated in ground 1, I do not consider the two approaches are mutually exclusive. The construction of the CDC required in ground 1 resulted in my finding that Mr Kennedy could not rely on extrinsic evidence. That the extrinsic evidence arose before the CDC was issued was not material to that finding. That finding was directed to the construction of the CDC as a statutory instrument. Grounds 3-5 address different questions and do require characterisation of the intended use of the shed and evaluation of the matters in s 4.28(3). Relevant statements made after the CDC was issued which inform such questions are not precluded in my view by my finding on ground 1. Accordingly I will have regard to the evidence the Council seeks to rely on in relation to grounds 3-5. Evidence Statements after complying development certificate issued 1. The SOAF above in [13] extracts the following relevant statements made after the CDC was issued about the purpose of the shed: 1. A statement made by Mr Herzig during the Council inspection of the Land on 17 November 2021 at par 20; and 2. Statements from Mr Kennedy's affidavit dated 2 February 2023 at par 32. 1. In addition Mr Stassmeir deposed the following statement was made by Mr Kennedy in their meeting on 22 December 2021 about the purpose of the shed: No, I am not using it for any business purpose. I own about 97 classic trucks and cars. They are currently stored at a number of different locations and I want to consolidate the collection to one site. 1. Mr Kennedy prepared a floor plan (Ex D) to illustrate how he intended to use the shed. During cross-examination Mr Kennedy annotated the floor plan to identify where in the shed machinery used for the upkeep of the land and vehicles in his private collection would be stored. Five vehicle spaces were allocated to machinery used for the upkeep of the land including an excavator, a forklift, two tractors and two ride-on vehicles. Thirty-nine vehicle spaces were assigned to the historic trucks, cars or motor bikes in his private collection. Mr Kennedy stated vehicles in his private collection include a semi-trailer, caravan, motorhome, prime movers and dodge trucks. 2. In cross-examination Mr Kennedy stated he and his partner parked their vehicles in the open as the separate building described as a garage or carport on the site plan in Ex B was not large enough. Further, that building could not be used to store cars as wind passed through the building, the wood was rotting and it contained vermin. 3. Relevantly to ground 5, Mr Kennedy deposed that he carries out general maintenance works on the vehicles himself. For instance, he checks the vehicles' lights, oil, battery and tyre pressure. He stated he will attend an off-site mechanic or garage if the historic trucks, cars and motorbikes need servicing. 4. I consider this material can be taken into account in relation to grounds 3-5 for the purpose of the Court's evaluation of the validity of authorisation of the CDC under s 4.31. Ground 3 development for impermissible purpose of car park Ground 4 proposed use not ancillary to use of dwelling 1. Ground 3 asserts that the shed is for the impermissible purpose of a car park. Ground 4 asserts that the Shed is not ancillary to a dwelling house on the Land due to its size and scale. These grounds rely on statements made by Mr Kennedy identified above in [92] and the SOAF above in [13] at pars 20, 32 that the shed is to be used to keep his large collection of historic trucks, cars and motorbikes, in pursuit of his hobby of collecting such items. The shed is 60m x 32.2m, being 1,392m² (above in [13] at par 7). The dwelling on the land is 458m² (above in [13] at par 2). The Council also relies on the floor plan described above in [93]. Council's Submissions 1. In essence the Council submits that the proposed use of the shed to store not only machinery for the land, but also Mr Kennedy's historic motor vehicle collection, gives the shed a use which is not subordinate to the use of the dwelling house. Rather, there is a second purpose (that of the storage of the vehicles and machinery, particularly the vehicles) that does not subserve the dwelling house use but is a separate independent use. It is not a question of one use being dominant but that there would be two independent purposes operating, Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 (Foodbarn) at 161. 2. Whether there is an overarching use is a matter of fact and degree taking into account the circumstances of the case. A use which can be said to be ancillary to another use is not thereby automatically precluded from being an independent use of the land, Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 at 409 per Meagher JA. 3. The character, extent and other features of an activity may lead to the conclusion of fact that that activity should not be regarded only as for some ultimate purpose, but as a use for a discrete purpose related to that particular activity, CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 (CB Investments) at 272 per Hope JA. 4. Flowing from his oral evidence the Council submits that: 1. Mr Kennedy and his de-facto wife live in the house, with four bedrooms, two bathrooms, and some associated rooms and whilst they have refurbished some rooms the layout (Ex B) remains similar to when purchased. 2. The area of the interior of the house is about 270m² (based on measurements in Ex C of 28.46m x 9.47m). 3. Mr Kennedy and his wife currently park their cars outside the house on a hardstand area. 4. Mr Kennedy's proposal for use of the shed (Ex D) the subject of the CDC is overwhelmingly to store vehicles in his private collection of trucks, cars and motorbikes. The only machinery that would be used for upkeep of the land are an excavator, two tractor/slashers, two ride-on vehicles and a forklift which represent six out of the forty-five vehicles identified in cross-examination on Ex D. More than half of the shed would be occupied by cars. 5. Thirty-nine of the vehicles would be from Mr Kennedy's collection of ninety-eight vehicles, so less than half the collection would be accommodated. The proposed shed is over five times larger than the liveable area of the house on the land, which is already serviced by a double-car garage (albeit in poor condition). 1. If these matters can be taken into account they demonstrate that any use of the shed for machinery for maintaining the land is a subordinate purpose and the dominant purpose is the parking of motor vehicles from Mr Kennedy's collection. This does not subserve the residential use of the land. Whilst collecting cars may be Mr Kennedy's hobby, the ability for any particular hobby to be accommodated within the scope of a dwelling-house use must be limited. A collection of stamps housed in Mr Kennedy's home library might be within that scope whereas a collection of military aircraft would probably be outside that scope. Applying the test in CB Investments the character and extent of use of the Land for the parking of motor vehicles is such that it constitutes an independent use of land and is not subsumed in other use of land. 2. The conclusion that this is an independent use not associated with the dwelling house use is strengthened by the fact that Mr Kennedy's collection is currently stored on other land and has been for some time. Whilst it could be moved to the subject land, that does not automatically render it 'associated with' the dwelling house use, it is simply an independent use imported to the Land. 3. If the CDC is construed to authorise construction of the shed for the purpose to which Mr Kennedy claims to want to put it, then that construction is for the purpose of a 'car park' as defined in the WLEP. The car park purpose is not ancillary to the use of the dwelling house, since, as a matter of fact and degree, the car park purpose is a sufficiently independent purpose which does not subserve the dwelling house. 4. It is noted in this regard that the relevant definition of 'ancillary development' in cl 1.5 of the Codes SEPP expressly includes carports or garages 'that [are] attached to a dwelling house' but does not specifically include a freestanding 'garage' in that definition. 5. In reply to Mr Kennedy's submissions below in [108], the Council submits it must follow from cl 1.18(1)(b) that if the development is for a purpose which is prohibited (such as for a car park) it is incapable of being complying development under the Codes SEPP. This falls within the chapeau of ground 1 in the Amended Summons extracted above in [4]. Particulars (d) and (e) of ground 1 in the Amended Summons expressly plead that the shed is being constructed for a prohibited purpose on the land, being a car park, and thus is not complying development. If the development is prohibited under the WLEP, the effect of cl 1.18(1)(b) is that it is incapable of constituting complying development under the Codes SEPP. 6. In reply to Mr Kennedy's submissions below in [109], a consideration of purpose remains relevant to the identification of complying development under the Codes SEPP. Purpose is expressly imputed by reason of cl 1.5(5). The word 'ancillary' also imputes purpose, as the term connotes a connection by way of use of land, rather than by way of mere physical proximity or presence, see Foodbarn. Mr Kennedy's submissions Ground 3 1. Clause 3A.5 of the Codes SEPP does not require characterisation of the purpose of the shed to be undertaken. It is a general requirement of complying development that the purpose of development be permissible in the relevant zone, cl 1.18(1)(b). No specific challenge to the CDC is brought on the basis that the proposed development is not permissible in the zone. The shed is not a car park being wholly ancillary to the dwelling house in a characterisation sense. Further there is no formal access or other driveway to the shed. Ground 4 1. At its most basic, the Council is substituting a test of 'what could be reasonably described' which is not found in Part 3A Rural Housing Code of the Codes SEPP. This is because: 1. The phrase 'ancillary to a dwelling house' in clause 3A.5 is not an enquiry at all into the purpose for which development is carried out in a characterisation sense. It is a test of a connection with an existing dwelling house and which is stated in objective terms. Here the shed was proposed for no other reason than to be used in conjunction with the use of the dwelling house. 2. An enquiry into purpose, in the sense of characterisation, is made in a different statutory context for ascertaining permissibility. 3. Whilst permissibility is a qualifying criterion for complying development in clause 1.18 of the Codes SEPP, clause 3A.5 does not require this enquiry. 4. Where the Codes SEPP intends that such an enquiry into purpose (in a characterisation sense) is intended as a qualifying criterion for either exempt or complying development, it is expressly stated in the instrument. 5. The evidence shows the use of the shed would be ancillary to the use of the dwelling house. There was no other reason for its construction or use stated to the Certifier. 1. The way the Council puts the test involves the kind of reasoning cautioned against by the High Court in assuming 'some preconceived general notion of what constitutes planning', Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at 67 per Gummow and Hayne JJ. 2. The size, scale and capacity of the shed is not determinative of whether it is ancillary when that term is given its ordinary (not characterisation) meaning. The Codes SEPP is prescriptive where it intends to limit ancillary development. If the clause intended to limit ancillary development, a development standard in relation to size, scale and capacity would have been included in Part 3A. The only relevant controls are setbacks in, for example, cl 3A.15 of 50m from a primary road and 10m from a secondary road and height controls because it is not a farm building. The shed's size is irrelevant. 3. If size and scale were relevant indicators of what is ancillary (including because it was proper to undertake a characterisation exercise), the proper comparison is with the whole of the land, Saffioti v Kiama Municipal Council (2017) 225 LGERA 136 at 157. The shed occupies a little over 1% of the site. Finding on grounds 3-4 1. I have rejected Mr Kennedy's submission in [67] above that the application of cl 1.18 of the Codes SEPP cannot arise in this proceeding. Characterisation of the purpose of the shed beyond its description as ancillary to a dwelling house is required in order to be permissible under the WLEP. 2. As the Council submitted, the question is one of fact and degree in the circumstances of the case as held in CB Investments at 272 per Hope JA. The size and area of the shed is substantial, see SOAF above in [13] at par 7. For the reasons identified by the Council's submissions above in [98]-[104] the use for storing a large number of vehicles is a separate, independent use of the Land, going well beyond use as a garage for cars used in daily life by the occupants of the house. 'Car park' is defined in the WLEP dictionary as 'a building or place primarily used for the purpose of parking motor vehicles, including any manoeuvring space and access thereto, whether operated for gain or not' and is a prohibited use in the RU1 zone. That is the appropriate description for the intended use of the shed. Mr Kennedy's reliance on Saffioti is misplaced in that the Court was there considering whether a use of land supported a particular existing use of that land. That the Court considered the whole of the land in undertaking that analysis in Saffioti does not mean that is the appropriate approach in all circumstances. 3. A comparison with 'ancillary development' in cl 1.5(1) of the Codes SEPP, which refers to a carport attached to a dwelling house and garage attached to a dwelling house, does inform the scope of development that is likely to be viewed as ancillary. The scale of the shed far exceeds the kinds of development specified in cl 1.5(1). As the Council submitted a freestanding garage is not within the list. 4. The circumstances of this case reflect the circumstances in Foodbarn in finding that there will be two independent uses of the land. The car park use is so large it is an independent use which does not subserve the dwelling house. I reject Mr Kennedy's submission that the appropriate comparison is the whole of the land of which the shed occupies a relatively small percentage. 5. Mr Kennedy's submissions are not accepted, for the primary reason that the subjective intention of the occupier of a dwelling cannot inform use for a planning purpose in determining whether a use of a building is ancillary to a dwelling house. Essentially that is what Mr Kennedy's approach does. Mr Kennedy's hobby of collecting historic vehicles and his occupation of the dwelling house is the only basis for arguing that the very large shed for the storage of that collection is ancillary to the dwelling house. That approach leads to absurd results as were explored in oral argument where his counsel submitted the only limits on the size of the shed were the setback provisions in the Codes SEPP and height controls as identified in [111] above. 6. Planning purpose(s) and consequential use(s) run with specific parcels of land. The planning system would lack certainty and coherence if the subjective intentions of the occupier of a house determined whether development is ancillary to a dwelling house. For example, what would happen if Mr Kennedy or the next occupier decided to collect even larger items such as aeroplanes? That the shed is useful to Mr Kennedy, the occupier of a house on the same lot as the proposed shed, for a particular personal purpose does not mean its use is ancillary to a dwelling house in a legal planning sense. 7. I conclude that the Council is successful on ground 3 as the shed is intended to be an impermissible car park which is prohibited in the RU1 zone under the WLEP. Further, ground 4 is also established by the Council as the shed is not ancillary to the use of the dwelling house. Ground 5 impermissibility of shed as not an outbuilding 1. Ground 5 alleges that the development the subject of the CDC is not within the definition of 'ancillary development' in cl 1.5, not being an 'outbuilding' as defined in that clause as a type of Class 10a building under the BCA, now NCC. 2. The provisions of the NCC which identify Class 7 and Class 10 buildings and the definitions of car park and private garage are set out above in [12]. Mr Kennedy's evidence set out above in [93] concerning maintenance and servicing of the vehicles in his collection is relevant to this ground. Council's submissions 1. The Council submits the shed does not come within the definition of 'ancillary development' under cl 1.5 as it is not an 'outbuilding' within the meaning of that clause, namely a particular type of Class 10a building under the NCC. Only the category 'outbuilding' in cl 1.5(j) could describe the shed. 2. The NCC includes Class 1, Class 7 and Class 10 buildings. Garage and shed are not defined. 'Car park' and 'private garage' are defined in the NCC above in [12]. 3. If the Court is permitted to consider the statements by Mr Kennedy as to the purpose of the shed, then the more appropriate classification is 7a, being a 'car park'; or alternatively 7b, as it is to be used for storage. This is for the following reasons: 1. Prima facie, given the proposed use of the shed, it meets the description of a 'car park' which is a Class 7a building. However it would not be a 'car park' if it were a private garage. 2. Having regard to the definition of 'private garage', the dwelling on the land is a Class 1 building. However, the use of the proposed shed is not 'associated with' the dwelling, for the same reasons that the shed cannot be said to be 'ancillary to' the use of the dwelling. The purpose of storage of vehicles is not one associated with the dwelling itself but is a supplementary use given the significant scale which is well in excess of any requirement related to the dwelling. It is not within par (a) of that definition. 3. The number of vehicle spaces in the shed vastly exceeds three, therefore pars (b) and (c) of the definition of 'private garage' do not apply. Therefore it is not a private garage and is capable of falling within the description of a Class 7a building. 4. The reference to a 'shed' in par (1) of A6.10 of the NCC should not be read broadly so as to incorporate any non-habitable shed, regardless of purpose of use. The consequence of so doing would be that any shed used for any purpose that was non-habitable would be a Class 10a building. Rather, adopting an analysis of the surrounding text and content to give meaning to the term per Weston Aluminium Pty Ltd v Environment Protection Authority [2022] NSWCA 236 at [32], the reference to a 'shed' should be read down so that if a building met the description of another class of building, it would not be taken out of that class and considered a Class 10a building merely because the building form was a 'shed rather than some other form. To find otherwise would mean that selection of a particular building form would be able to be used to escape the more rigorous standards that might be applied to another class of building. 5. Accordingly, a non-habitable shed proposed to be used as a car park should be classified as Class 7a, not Class 10a. 6. Alternatively, it is used for storage purposes (being storage of the various cars and equipment referred to by Mr Kennedy) and is a Class 7b building. An extensive storage facility in the nature of the shed, significantly larger than the dwelling on the Land, is of sufficient scale to be considered for a separate purpose. 1. If the building is a Class 7 building, it is not an 'outbuilding' for the purposes of the Codes SEPP. There is no other relevant type of 'ancillary development' within the definition in cl 1.5 which applies to the proposed building. Therefore, for this additional reason, the development the subject of the CDC was not development for which a CDC was authorised to be issued. 2. In reply to Mr Kennedy's submissions below in [130], Shire of East Pilbara v FMG Pilbara Pty Ltd [2009] WASC 110 (Pilbara) does not assist Mr Kennedy. That case indicates the following propositions regarding the application of the Class 7b building category: 1. The classification of a building cannot be divorced from the manner in which it will be occupied. The nature of occupation of the building is a factor to be taken into account in determining its use (at [28]); 2. The expression 'storage' is not limited to storage for commercial purposes (at [32]). A building might be used for storage other than in a commercial context, but nevertheless fall within Class 7b (at [35]); and 3. The fact that a building is used for storage of any description is insufficient to result in a Class 7b classification. Rather, the inquiry is to the purpose for which the building is designed, constructed or adapted to be used (at [37]). 1. Thus, a building used for storing a single motor vehicle might not fall within Class 7b (Pilbara at [46]), but the decision leaves open the possibility that the storage of a large quantity of vehicles could well be. It is noted in Pilbara at [48] that classification of farm buildings as Class 10a would only be the case if Class 7 or Class 8 were not more appropriate, taking into account matters such as size, purpose and operations. A Class 7 classification is more appropriate for the subject building. Mr Kennedy's submissions 1. Characterisation is not required for the application of cl 3A.5 (see above in [65], [108]-[109]). 2. Further, the shed would not be a car park and is not a Class 7a building in the ways defined in the NCC. The definition of car park excludes a building which is used for servicing of vehicles (except for washing, cleaning or polishing). Mr Kennedy's evidence above in [95] is that servicing of other kinds would occur in the shed. 3. Nor is storage alone sufficient to constitute a Class 7b building, Pilbara at [36]. Pilbara at [39] suggests the determination of the building class for NCC purposes also requires understanding the intended use and possible safety implications of the determination, which the Council has not attempted to do. 4. Accordingly, for the purposes of the NCC, the shed is not a car park or used for storage and is not a Class 7 building. The shed is appropriately classified as a non-habitable building within the definition of a Class 10a building. Finding on ground 5 1. Under the NCC a Class 10a building is 'A non-habitable building being a private garage, carport, shed or the like'. 'Private garage' is defined as containing no more than three cars inter alia. Carport and shed are undefined. Class 7a building includes car park. 'Car park' is defined as a building for parking motor vehicles that is not used as a private garage or for servicing vehicles. Class 7b includes storage. 2. In Pilbara the Supreme Court of Western Australia was considering an appeal on a question of law from the State Administrative Tribunal of Western Australia in relation to competing submissions concerning the application of Classes 7 and 10 of the BCA to two large shed structures which were being used for storage of materials necessary for the maintenance and operation of FMG's railway service. His Honour observed: 5 …The Tribunal referred to the following definition of a shed taken from the Shorter Oxford English Dictionary (5th ed, 2002): A single storey esp. wooden structure, erected separately or as a lean to, and serving for storage, shelter for animals etc, or use as a workshop. 6. This evokes a picture of what is perhaps an Australian icon: the backyard shed to which men of a certain age retreat in order to pursue blameless activities of infinite variety. And perhaps where a whole range of items are stored against the possibility that one day, they might be useful. 7. However, the buildings the subject of this appeal fall well outside this definition… 1. While Templeman J found that the structures in issue before him were sheds and Class 10 buildings, that same conclusion does not follow here. The approach of Templeman J in Pilbara supports the Council's construction of the NCC provisions under consideration for the reasons it gives above in [126]. 2. For the reasons given by the Council above in [124(2)]-[124(3)] the very large shed parking a large number of vehicles does not fit the definition of private garage. 3. In considering the definition of car park, which excludes premises used for servicing vehicles, Mr Kennedy undertakes general maintenance of his vehicle collection according to his evidence summarised above in [95]. He also states that servicing is carried out off-site. These activities do not mean that the building will not be a Class 7a building. As submitted above in [124(1)] the use of the shed fits the definition of car park in the NCC, which is a Class 7 building. 4. I also agree with the Council's submission in relation to the construction of shed at [124(4)]. Accordingly the shed cannot be classified as a Class 10a building. 5. The council is successful on ground 5. Ground 6 complying development certificate not issued subject to conditions 1. Section 4.28(6)(a) of the EPA Act set out above in [6] and cl 3A.39 of the Codes SEPP set out above in [9] are relevant to this ground. Section 4.28(6)(a) requires a CDC to be issued subject to conditions required by an environmental planning instrument. Clause 3A.39 requires conditions specified in Sch 6 to be imposed in a CDC. 2. The CDC states 'Conditions: See conditions attached'. The CDC annexes s 7.21 of the EPA Act (dealing with contributions plans) and a condition relating to contributions payable (in respect of which no sum is identified). It also attaches Div 2A of the EPA Regs (cll 136A-136N), which refer to various conditions which must be imposed on CDCs in certain circumstances. The CDC does not annexe the 17 conditions in Sch 6 of the Codes SEPP, nor is there a reference to cl 3A.39. Council's submissions 1. The CDC was not issued subject to the conditions required to be imposed in cl 3A.39 of the Codes SEPP. Section 4.28(6)(a) of the EPA Act should not be read as conferring a discretion upon a certifier to impose conditions or not, where those conditions are otherwise required. Rather, the section should be read as requiring that, where an environmental planning instrument requires a certificate to be issued subject to conditions, then any certificate issued must be subject to those conditions to the extent required. The failure to impose the conditions required by cl 3A.39 is an independent ground founding the invalidity of the CDC. Mr Kennedy's submissions 1. It is accepted that the certifier did not attach the condition set out in Sch 6 of the Codes SEPP. No mandatory obligation is imposed on a certifier to issue a CDC subject to conditions in Sch 6. The failure to do so does not result in invalidity under this statutory scheme, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky). This is because the scheme contemplates that: 1. A certifier 'must not refuse' to issue a CDC if the application otherwise complies with the required standards and other requirements (e.g. giving of notice) per s 4.28(7) of the EPA Act; 2. The issuing of the certificate subject to conditions is a step that only occurs after determination, and does not depend on it, per cl 3A.39 of the Codes SEPP, s 4.28(6) (compared to 4.28(3)) of the EPA Act; 3. A failure to attach Sch 6 conditions does not mean that the obligations of those conditions do not apply, since complying development must in any event be carried out in accordance with the provisions of the Codes SEPP including Sch 6, s 4.26(1)(b)(ii) of the EPA Act; and 4. Section 35(1) of the Interpretation Act 1987 (NSW) provides that headings are to be included in construction, so that the heading of s 4.26 informs obligations. Finding on ground 6 1. The obligation to impose the conditions in Sch 6 of the Codes SEPP when issuing a CDC is expressed in mandatory language (must) in cl 3A.39. As the Council identified, the 17 conditions specified are important in ensuring environmental protection and amenity protection for neighbours (protection of adjoining areas, tree protection measures, run-off and erosion controls, adjoining wall dilapidation report where necessary, construction hours, site maintenance, contamination measures), cultural heritage protection, appropriate toilet facilities for workers and completed vehicle access points and utility services. CDCs are generally issued for lesser impact developments which can nevertheless have environmental and other consequences for neighbours. 2. The mandatory nature of the obligation imposed on the certifier issuing a CDC to include these conditions is emphasised by these conditions. The importance of doing so is also underscored by s 4.26(1)(b)(i) requiring that a person carrying out development pursuant to a CDC must comply with that certificate. That there is a separate obligation imposed on the recipient of the CDC to comply with conditions such as those in Sch 6 does not dilute the obligation imposed on the certifier. I consider that the statutory scheme viewed as a whole imposes a mandatory obligation on a certifier to impose the conditions in Sch 6 and the failure to do so gives rise to invalidity of a CDC. 3. The Council is successful on ground 6. Ground 7 complying development certificate uncertain and lacks finality 1. The evidence relevant to this ground alleging uncertainty and lack of finality in the CDC are the plans attached to the CDC. 2. Schedule 1 of the CDC is headed 'Approved Plans and Specifications'. A list of three 'Endorsed Architectural Plans', twenty three 'Endorsed Structural Plans', one 'Endorsed Engineering Plan[s]' and nine 'Endorsed other documents' is itemised. 3. The three 'Endorsed Architectural Plans' referred to in Pt 1 of Sch 1 are stamped with the certifier's name, a reference '1230/01' which is the number given to the CDC, and the date 29 October 2021. 4. Part 2 of Sch 1 is entitled 'Endorsed Structural Plans'. That section specifies 23 plans, all identified as document EZIBL0856525-1 prepared by Graeme Moulston and Associates Engineering, all of which are specified to be Revision A dated 15 July 2021 except for Drawing 01 which is specified to be Revision B dated 28 July 2021. Condition G1 of the endorsed structural plans states: G1. Read these notes in conjunction with architectural and other engineering drawings and specifications, and with such other written instructions as may be issued. Refer to architectural drawings for setting out and detail dimensions. In case of discrepancy, precedence is given to drawings, then notes, then specifications. Council's submissions 1. There are two bases by which the CDC is uncertain and lacks finality. These are: 1. There are conflicting heights shown for the shed in the architectural and structural plans referred to in the CDC; and 2. The CDC purports to approve plans which are not correctly or precisely identified in the CDC. 1. A consent that is uncertain and lacks finality is liable to be declared invalid, Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737, Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 (Kindimindi) at 285-286, 292. Kindimindi identified what Jagot J referred to as three potentially overlapping circumstances that may constitute a lack of finality in Mid Western Community Action Group Inc v Mid Western Regional Council & Stockland Development Pty Ltd [2007] NSWLEC 411 (Mid Western) at [21]: 21. …First, imposing a condition that has the effect of significantly altering the development in respect of which the application was made. Secondly, imposing a condition leaving open the possibility that the development as approved may be significantly different from the development in respect of which the application was made. Thirdly, imposing a condition which is final in that it does not foreshadow any further judgment, but in terms that are imprecise and uncertain… 1. It is the third of these circumstances which is relevant in this case. 2. None of the structural plans provided by the certifier clearly match the descriptions in Pt 2. However, there is a set of 23 drawings with the same reference number EZIBL-856525-1 produced by Graeme Moulston & Associates Engineering. All are labelled Rev A and in the bottom right corner are dated 17 July 2021. However, on the left hand side of the plans, in a section labelled 'Revisions' each plan is noted to be 'Rev A' with a date of 15 July 2021. To complicate matters further, the first of these plans (Drawing 01) has a further note within the Revisions box which states '28/07/21 – Job No 21-1266 Kennedy'. None of these plans are endorsed with a stamp. Given the two sets of dates on these plans, their identification is ambiguous, particularly in the absence of a stamp. Put another way, the differences are: * The copy of Drawing 01 provided is Revision A dated 17 July 2021, not Revision B dated 28 July 2021, though bearing a note in one corner which bears the date 28 July 2021 with no revision number. * The copies of Drawings 02 through 23 bear two dates, both 15 July 2021 and 17 July 2021. 1. Part 3 of Sch 1 is entitled 'Endorsed Engineering Plans' which specifies one plan, prepared by ADC Design Group, document C213638, Drawing C1A, Revision A, dated 14 September 2021. 2. No stamped engineering plan has been provided by the certifier, but he has provided a plan prepared by ADC Design Group, document C213638, Drawing C1A, dated 6 September 2021 in the bottom right hand corner, and then in the bottom left hand corner dated 22 September 2021. Neither of those dates corresponds with the date specified in the CDC. Furthermore, the copy provided contains discontinuities and sections which appear to have been erased from the plan. 3. Neither the structural nor engineering plans identified in the CDC match the plans provided, by reasons of differences in the dates on the plans, and (in the case of Drawing 1 of the structural plans) the revision number. There are also conflicting dates on the plans. In the absence of a stamp, it is not possible to identify whether or not the plans provided are in fact correct plans relating to the development. 4. In reply to Mr Kennedy's submissions below in [162], a review of the structural plans shows that they provide detailed building plans and specifications in far more detail than the architectural plans. If the architectural plans are given precedence to the structural plans in relation to the height of the shed walls, then the engineering detail within is rendered meaningless as it would be physically impossible to construct to the illustrated engineering design. The overriding of the specifications would mean that there were no longer appropriate building plans and specifications which applied to the development as approved, potentially resulting in a building that was unsafe if constructed other than to the approved engineering specifications. Height discontinuity 1. The elevations in the architectural plans (Drawing No 01 dated 7 October 2021) shows a height for the shed wall of 3750mm, and a height to the apex of the roof of 4.765m as set out in the SOAF above in [13] at par 8. 2. In contrast, the structural plans show a height for the shed wall of 5470m as set out in the SOAF above in [13] at par 9. They do not show a height for the apex of the shed (Drawings No 06, 07, 08, 09, 11, 12). In addition, the sliding door frame detail (Drawing No 22) shows a door of height 5068mm, which is taller than the overall size of the shed in the architectural plans. 3. The effect of these discrepancies in the plans attached to the CDC is that the CDC lacks certainty such that it is impossible to build a shed which complies with both the architectural and structural plans incorporated into the CDC. Mr Kennedy's submissions 1. Uncertainty and lack of finality refer to different things. They are linked to notions of impermissible deferral of consideration of aspects required to be considered under s 4.15 of the EPA Act, and the extent to which conditions of consent may result in changes to the development for which application was made. 2. In response to the alleged inconsistency between approved documents, the discrepancies identified by the Council are generally minor and can be easily corrected, such as re-issuing plans with the correct dates. Condition G1 identifies that architectural plans are to take precedence and that means the CDC can be particularly implemented. 3. Even if the architectural plans did not take precedence, an inconsistency does not mean uncertainty or lacking in finality in a relevant sense, Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86 at [223]-[225]. More is needed. Rather, at most it may mean that development cannot be carried out in conformity with the approved plans, without correction to the consent. A modification application under the EPA Act can deal with errors and inconsistencies. 4. In response to the assertion the CDC approves plans not correctly or precisely identified, the list of approved plans is clear. The complaint is that they do not match precisely with those plans produced by the certifier. 5. This appears to relate particularly to the architectural plans, with some incorrect references to dates on the plans, but which in two cases are otherwise correctly identified by a drawing number. In any case, the architectural plans are stamped. The structural and stormwater drainage plans are not stamped, but there are sufficient details to identify them. Moreover, construing the consent (and what it includes) is not a relevant basis for invalidity of the CDC, it is an exercise subsequent to the issue of the CDC. Finding on ground 7 1. The discrepancies identified by the Council in the CDC plans are not disputed. The extent of the discrepancies varied in severity in that some could be considered more minor than others. 2. One substantial discrepancy concerns the difference in height between the architectural plans and the detailed engineering drawings. The latter are prepared based on a markedly taller building than is referred to in the architectural plans. The variation in height of the shed wall is some 1.72m, not a minor amount measured in a few millimetres. On this basis alone the CDC is uncertain in a legal sense as identified by the authorities relied on by the Council in particular the second and the third circumstances referred to in Mid Western at [21]. The state of the plans which form part of the CDC leave open the possibility the development approved will be significantly different from the development in respect of which the application was made, and for being imprecise and uncertain. Correction of this major discrepancy requires the preparation of new engineering plans at a minimum. 3. Mr Kennedy's reliance on Condition G1 of the structural plan in submitting that the architectural plans are to take precedence does not assist in the resolution of this substantial discrepancy. Firstly the meaning of that condition is unclear. I do not need to resolve that issue in order to resolve this ground. Secondly if the architectural plans are to take precedence no detailed engineering plans consistent with architectural plans have been approved which would enable these to be executed. It is not possible to build the different structures depicted in the various drawings coherently. 4. The additional discrepancies of dates highlighted by the Council collectively also mean that the plans approved by the certifier are quite unclear. Whether they can be easily corrected in the manner referred to by Mr Kennedy is not apparent. Once again that is not a matter I need to resolve in light of the many other deficiencies I have found exist in relation to this CDC. 5. The Council is successful on ground 7. Discretion/relief 1. I agree with the Council's submissions that the wording of s 4.31 facilitates the application of the test in Project Blue Sky at 390-391 (that is, to determine the consequences of a breach of statute by asking whether it was a purpose of the legislation that an act done in breach of the relevant provision be invalid). The only relief sought by the Council is a declaration of invalidity of the CDC under challenge. Mr Kennedy accepted that if the Council was successful on one or more of grounds 1-5 the CDC should be declared invalid. Mr Kennedy also submitted that relief could be granted if only grounds 6 and 7 were upheld by the application of s 25B of the LEC Act. The application of s 25B in the context of a CDC was disputed by the Council. I do not need to resolve that issue, given my other findings on invalidity. 2. I have upheld grounds 1-5. Applying Project Blue Sky at 390-391 the basis of the various invalidities established by the Council warrants a declaration of invalidity within the context of the EPA Act and the Codes SEPP I have considered above, particularly the necessity to ensure permissibility of a development in a zone in a local environmental planning instrument in order for it to be complying. The CDC will be declared invalid. Costs 1. The Council has been successful and, in the absence of disentitling conduct, costs follow the event in Class 4 proceedings so that the Respondents would be liable for the Council's costs. The principal costs issue is whether the Council's costs are paid by one, some or all Respondents. Mr Kennedy having defended the proceedings is potentially liable for the Council's costs. A further issue is whether the submitting save as to costs Respondents should also be liable for costs, in particular the Certifier. The opportunity will be provided to Mr Kennedy and the submitting Respondents to make any submissions in writing on their liability for the Council's costs to the Court by 26 May 2023. The Council has the opportunity if it wishes to reply to any submissions on costs two weeks after, being 9 June 2023. Costs will be finalised thereafter based on submissions, if any. Declarations and orders 1. The Court makes the following declaration as identified in the Amended Summons dated 5 May 2022: 1. A declaration that complying development certificate 1230/01 issued by the Fourth Respondent to the First Respondent on 28 October 2021, for the carrying out of development for the purposes of the construction of a detached shed on land described as Lot 22 DP595037, known as 780 Cawdor Road, Cawdor NSW is invalid and of no effect. 2. Costs are reserved. ********** APPENDIX A Wollondilly Shire Council v Kennedy (1265442, pdf) APPENDIX B Wollondilly Shire Council v Kennedy (2518083, pdf) 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: 16 May 2023