> Land and Environment Court of New South Wales CITATION : Baulkham Hills Shire Council v Austcorp No 459 Pty Limited [2003] NSWLEC 399 PARTIES : Baulkham Hills Shire Council (Appl) Austcorp No 459 Pty Limited (Resp) FILE NUMBER(S) : 41490 of 2003 CORAM: McClellan CJ Development Consent :- Non compliance KEY ISSUES: Building certificate Construction certificate Occupation certificate LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 96 CASES CITED: DATES OF HEARING: 10 December 2003 EX TEMPORE JUDGMENT DATE : 12/10/2003 P McEwen SC (barrister - appl) Maddocks (sol - appl) LEGAL REPRESENTATIVES: M Craig SC (barrister - resp) Baker & McKenzie (Sol - resp) JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 41490/03 McCLELLAN J WEDNESDAY 10 DECEMBER 2003 BAULKHAM HILLS SHIRE COUNCIL Applicant v AUSTCORP NO 459 PTY LIMITED Respondent Judgment Introduction 1 HIS HONOUR: This matter comes before me this morning on the application of Austcorp that the application brought by the council in class 4 proceedings should be summarily dismissed. 2 The circumstances are that a development comprising twenty six home units has been constructed in Baulkham Hills. It is apparent that the development which has been constructed does not conform to the development consent originally granted by the Court. 3 A major departure is that less car parking was provided than was originally approved. As I understand it, this is because a decision was made not to excavate through rock which would have been required to achieve two levels of car parking and, as a consequence, only one level of car parking was constructed. The configuration of the car park has given rise to some difficulties in relation to access and the safety of vehicular ramps and the like; there may also be other problems. 4 The building having been constructed, there are now proceedings in class 4 of the Court's jurisdiction in which the council seeks to have the building demolished. In the meantime, Austcorp sought approval of the departures pursuant to s 96 of the Environmental Planning and Assessment Act 1979. However, Cowdroy J determined that the departures were such that he was not able to grant an approval. Accordingly, proceedings in class 1 of the Court's jurisdiction were commenced and are part heard before two Commissioners. Those proceedings commenced some months ago and, as I understand the matter, are due to complete today. 5 In the course of those proceedings the parties raised two questions for separate determination. Those questions are set out in my Reasons for Judgment delivered on 28 November 2003. The questions which were raised were these: "1 Whether in the event of the grant of development consent an occupation certificate can issue in respect of the building. 2. If the answer to the first question is no whether there is any utility in the proceedings." 6 It is submitted by the council that because the building has been constructed otherwise than in accordance with the development consent granted, and, it is conceded that the construction certificate which issued did not relate to the approved development, an occupation certificate can never be issued. 7 In my earlier reasons for judgment I indicated that although the matter had been argued I decided that it was not appropriate to finally resolve the first question. I said: "As the final form of the development and the extent to which it may be authorised by an existing development consent, or a new one, are unknown the factual context is uncertain. The final form of the development and the extent it is approved by a new development consent and authorised by a construction certificate granted before the work is undertaken, may be significant in resolving the correct approach to the present difficulties." 8 I went on to indicate that in this respect I believed it to be most unlikely that if the ultimate form of the building is sanctioned by the Court in class 1 proceedings and the building as constructed is found to be safe and healthy the Court will require its complete demolition or prohibit its occupation. A submission in those terms bespeaks punishment, a matter for the criminal law and not a principled approach to the effective utilisation of an existing asset. In these circumstances there is utility in the merit determination being made. If nothing else it may inform the exercise of any discretion in class 4 proceedings. 9 Accordingly, I answered the second question yes. 10 Notwithstanding that judgment and my reasons and notwithstanding the fact that the class 1 proceedings have now continued and will complete today, the council brought a further application in class 4. In that application the council sought the following relief: "A declaration that an occupation certificate cannot issue in respect of the building situate(d) at 18-22 Campbell Street Northmead." 11 Particulars were provided which say as follows: "On the assumption that the following events occurred: (a) development consent is granted in proceedings no 10463 of 2003 for all of the proposed alterations (or some of them); and (b) all of the alterations (or some of them as received development consent) are completed in accordance with the development consent; and (c) a building certificate is issued pursuant to proceedings no 0351 of 2002, then there is no power for an occupation certificate to issue." 12 Secondly, a declaration was sought in the following terms: "A declaration that the proceedings nos 10463 of 2003 and 0351 of 2002 are otiose. An order that the Respondent be restrained from using or commencing to use the development situate at 18-22 Campbell Street, Northmead." 13 It seems to me that in the clearest terms the proceedings commenced by the council are an attempt to re-litigate the very matters which were argued before me and which I determined as separate questions in the class 1 proceedings. In my opinion an application in those terms should not have been brought and is an abuse of the Court's process. 14 As I said in my reasons previously given in the class 1 proceedings, this site clearly now raises significant problems. Whether or not the current building has been illegally constructed, very significant resources have been invested in the site and there is potentially available accommodation which could be utilised by individuals or families. Unless a practical resolution is found to the present problems the accommodation which has been provided is likely to remain unused for a considerable period of time. Indeed, if the council ultimately has its way it will be demolished. 15 The purpose of the class 1 proceedings is to determine, if this can be done, whether or not the building can be altered so that it can be made to conform to appropriate planning parameters and provide a safe and healthy living environment. If the class 1 proceedings reach the conclusion that this can be achieved, then a practical solution will have to be found to the ultimate utilisation of that resource. If, however, it is not possible to bring the building into an appropriate form then perhaps it will need to be demolished. However, those are matters which need to be looked at having regard to the Commissioners' decision and their reasons. 16 The proceedings which have been brought by the council in class 4, as I have indicated, are in my opinion nothing other than an attempt to re-litigate the matters which were previously argued and dealt with by me. If one examines para 1, that is the very issue which I indicated was not appropriate to be determined until after all of the relevant facts were available. Paragraph 2 is a matter that I have already dealt with and determined, being of the view that there is utility in the proceedings presently before the Commissioners. 17 The third matter is a matter which can only be determined having regard to all of the relevant circumstances at a time when an attempt to use the building is being made. At the present time, as I understand it, the parties have applied their resources to resolving the merits of the class 1 proceedings. Whether or not it may ultimately be appropriate for the Court to intervene by injunction is not a matter which presently arises at all. 18 It is submitted by the council that these class 4 proceedings were brought in an attempt to assist the Commissioners in determining the matters presently before them. That is a submission which I do not understand. The class 1 proceedings are to conclude today and it can be expected that the Commissioners will make their decision at an early date. These class 4 proceedings could not possibly have been utilised in the manner submitted. Furthermore, I do not understand the submission in circumstances where a declaration is being sought that the class 1 proceedings are otiose. Is it being suggested that the Commissioners will be assisted in resolving the matters before them which are matters of merit by advancing before a judge of this Court the proposition that the proceedings are themselves otiose? In any event, as I have indicated, that was a matter which I looked at and determined previously in the separate questions which were raised. 19 For all those reasons the class 4 application is dismissed. 20 The applicant in the class 4 proceedings is to pay the respondent's costs. ********** 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.