> Land and Environment Court of New South Wales CITATION : Austcorp No 459 Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 318 PARTIES : Austcorp No 459 Pty Ltd (Appl) Baulkham Hills Shire Council (Resp) FILE NUMBER(S) : 10351/02; 10463 of 2003 CORAM: McClellan CJ Development Consent :- Certification of development KEY ISSUES: Building certificate - construction certificate and occupation certificates Whether construction certificate may be issued after construction Not appropriate to resolve issue as separate question LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299 DATES OF HEARING: 13 November 2003 DATE OF JUDGMENT: 11/28/2003 M G Craig QC (Barrister - Appl) Baker & McKenzie (Solicitor - Appl) LEGAL REPRESENTATIVES: P J McEwen SC (Barrister - Resp) Maddocks (Solicitor - Resp) JUDGMENT: - 9 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10463/03 10351/02 McCLELLAN J FRIDAY 28 NOVEMBER 2003 AUSTCORP No 459 PTY LTD Applicant v BAULKHAM HILLS SHIRE COUNCIL Respondent JUDGMENT Introduction 1 HIS HONOUR: The parties have raised two questions for separate determination in these proceedings. The questions are: 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. Background 2 On 2 November 1999 the court granted development consent for the erection of a residential flat building comprising 26 apartments on property conveniently described as Lot 1 in DP 1035154. The development contemplated by that consent included 26 apartments in two buildings, a swimming pool, basement car parking on two levels, and below ground on-site detention for storm water. 3 After development consent had been granted the applicant purchased the property, the transfer being effected on 29 June 2000. On 12 September 2000 Mr Bernie Cohen of Essential Certifiers Pty Limited purported to issue a construction certificate certifying construction plans pursuant to the development consent. However, there were a number of differences between the construction plans and the development consent. Those differences are summarised in the reasons for judgment of Cowdroy J in proceedings 10007/99 dated 7 June 2002 ((2002) 122 LGERA 205 at 211 para 23). They included: · Raising the top level of the storm water detention tank by 2.5 metres above ground level instead of finishing at natural ground level with landscaping; · Deletion of a swimming pool; and · Deletion of the lower basement level of car parking. 4 The applicant proceeded to construct the development in accordance with the construction certificate. 5 On 26 October 2001 the applicant applied for consent from the council to the strata subdivision of the development. The council refused consent for the reason that the constructed development differed from the development consent which had been granted by the court. 6 On 18 December 2001 the applicant lodged an application seeking modification of the 1999 consent pursuant to s 96 of the Environmental Planning and Assessment Act 1979. By this means retrospective authorisation for the departures from the approved plans was sought (see Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299). On 7 June 2002 Cowdroy J refused to approve the application for modification. 7 On 20 December 2001 the council commenced proceedings seeking orders for demolition or rectification of the development. On 20 December 2001 Bignold J declined to grant an interlocutory injunction restraining future work on the property. 8 On 16 May 2002 the applicant lodged an application for a building certificate for the development and on 8 July 2002 commenced proceedings appealing against the deemed refusal of the building certificate. 9 The applicant also lodged a development application seeking development consent for the occupation of the buildings for residential purposes. That application was not considered by the council and an appeal was lodged with the court. 10 At the present time there are three proceedings in the court. They are: 1. Class 1 proceedings 10463/03 seeking development consent for occupation and some alterations to the existing buildings designed to meet the requirements of the relevant authorities; 2. Class 1 proceedings 0351/02 seeking a building certificate for the development as built and as it will be modified if consent is granted for alterations to the building; 3. Class 4 proceedings 40273/01 brought by the council seeking orders for demolition or rectification of the development. 11 The council submits that an occupation certificate cannot be issued for the building even if the court approves alterations to it and grants development consent for occupation of the altered building. As I understand it the council's submission is that although the building, when altered, may comply with all relevant planning and building health and safety laws and regulations it could not be lawfully occupied and must be demolished. 12 Before a building can be erected it will almost always be the case that the local environmental plan will operate so that development consent is required. Section 81A of the Act provides that a development consent that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose which was specified in the development application. However, s 81A(1) makes the provision expressly subject to s 109M. That section prohibits the occupation or use of a new building unless an occupation certificate has been issued. 13 Section 81A(2) provides that the erection of a building in accordance with the development consent must not be commenced until a construction certificate has been issued. The subsection provides as follows: "(2) The erection of a building in accordance with a development consent must not be commenced until; (a) a construction certificate for the building work has been issued by: (i) the consent authority, or (ii) an accredited certifier, and (b) the person having the benefit of the development consent; (i) has appointed a principal certifying authority, and (ii) has notified the consent authority and the council (if the council is not the consent authority) of the appointment, and (c) the person having the benefit of the development consent has given at least two days notice to the council of the person's intention to commence the erection of the building." 14 Regulations have been made concerning the issue of construction certificates. 15 Part 4A of the Act provides for the certification of development. Various certificates are contemplated. Section 109C(1)(b) provides that a "construction certificate" is "a certificate to the effect that the work completed in accordance with the specified plans and specifications will comply with the requirements of the regulations referred to in s 81A(5)." 16 Occupation certificate is defined in s 109C(1)(c) as being "a certificate that authorises: (i) the occupation or use of a new building, or (ii) a change of building use for an existing building." "New building" is not defined although s 109C(4) provides that a new building: "Includes an altered portion of, or an extension to, an existing building." 17 An occupation certificate may be an interim or final certificate and may be issued for the whole or only part of a building (s 109C(2)). 18 Section 109H provides for the circumstances in which an occupation certificate can be issued. The section provides as follows: "109H Restriction on issue of occupation certificates (1) A final occupation certificate must not be issued to authorise a person to commence occupation or use of a new building unless the certifying authority is satisfied: (a) that a development consent or complying development certificate is in force with respect to the building, and (b) in the case of a building erected pursuant to a development consent but not a complying development certificate, that a construction certificate has been issued with respect to the plans and specifications for the building, and (c) that the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and (d) that such other matters as are required by the regulations to be complied with before such a certificate may be issued have been complied with. (2) A final occupation certificate must not be issued to authorise a person to commence a change of building use for an existing building unless the certifying authority is satisfied: (a) that a development consent or complying development certificate is in force with respect to the change of building use, and (b) that the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia, and (c) that such other matters as are required by the regulations to be complied with before such a certificate may be issued have been complied with. (3) An interim occupation certificate must not be issued to authorise a person: (a) to commence occupation or use of a partially completed new building, (b) to commence a change of building use for part of an existing building. Unless the certifying authority is satisfied that such matters as are required by the regulations to be complied with before such a certificate may be issued have been compiled with. (4) In this section: 'New building' includes an altered portion of, or an extension to, an existing building." 19 Section 109M makes it an offence for a person to occupy or use the whole or any part of a new building unless an occupation certificate has been issued. 20 In the present case, as I understand it, the building which has been built conforms with the construction certificate which was issued but that certificate does not conform with the development consent. Accordingly parts of the building which have been built are not authorised by any relevant development consent. In one of the class 1 proceedings, that position is proposed to be rectified, consent being sought to alter the buildings which have been built. It is agreed that a construction certificate may then be issued to authorise construction of the alterations to the already constructed building. 21 It is also proposed that development consent to use the building, including the alterations, will be sought. This would follow as a matter of course in relation to any approved alterations. (s 81A(1)) 22 The applicant makes three submissions. It is submitted that s 109H is not a constraint because: "Section 109H(1) requires the certifier to be satisfied as to certain matters before an occupation certificate may be issued to legitimise occupation or use of a new building. If the building in question is not a new building, then an occupation certificate may still be issued, but the certifier is not bound to be satisfied as to the s 109H(1) matters. Hence, if the Built Development is not a new building, then the certifier need not be constrained by the matters listed in s 109H(1), and can issue an occupation certificate for the Built Development without impediment under s 109H(1). The certifier will only need to consider the s 109H(1) matters in relation to the rectification works. These will be constructed pursuant to certified construction plans, and will be capable of being subject to an occupation certificate. New building is not defined, other than by s 109H(4) to include an alteration of, or an extension to, an existing building. Section 109H(4) does not give any indication of when the Built Development might have ceased to be a new building and has become an existing building. Whether the Built Development is a new building for the purposes of s 109H is best determined by its age. The Built Development has existed since October 2001. It is now 2 years old. It is an existing, not a new, building. In circumstances where the Approved Development is ultimately assessed under s 79C of the EP & A Act to be worthy of occupation, it does no injustice to the EP & A Act to allow it to be occupied with an occupation certificate issued without constraint by s 109H(1) (save in so far as it relates to the rectification works) on the basis that it was no longer a new building." 23 It is further submitted by the applicant that if development consent to use the building is granted the development consent required by s 109H(1)(a) will exist. It is submitted that s 109H(1)(a), when it refers to development consent, is referring only to consent to use the building and s 109H(1)(b) is concerned with consent to erect it. 24 It is conceded by the applicant that the present building has not been erected in accordance with the existing development consent as contemplated by s 109H(1)(b) and accordingly has not been erected pursuant to a development consent. Accordingly it is submitted that, although if consent is granted to alter the building, s 109H(1)(b) may require a construction certificate before occupation of the altered sections it cannot require a construction certificate before occupation of the part of the building erected without development consent. 25 The applicant emphasises the fact that although a building which has been constructed without development consent has been constructed in breach of the Act, which may attract criminal sanctions, it may nevertheless be allowed by the council to remain. Immunity from demolition is available if a building certificate is issued (s 149E). This obviously sensible provision ensures that a community resource, albeit privately owned, is not wasted by unnecessary demolition. Criminal sanctions are available to discipline and punish those who break the law. The use and occupation of illegally constructed buildings is a different matter. 26 Finally, the applicant submits that, although the building may have been built, a construction certificate may still be issued. Section 81A makes it an offence to build without a construction certificate but it does not preclude the issue of such a certificate after construction. All that the certificate does is certify the plans, not the building, the certifier is saying nothing as to the actual building but merely expressing the requisite conclusion with respect to building plans. The reference to the table in s 121B in Section 2 to "prior construction certificate" is an indication that a certificate may be issued after construction. If it could only issue before construction the inclusion of the word "prior" when describing a certificate would be unnecessary. 27 Beyond these matters the applicant submits that the current proceedings have utility because: "(a) A grant of development consent will have potentially persuasive effect in the court's exercise of its jurisdiction in the class 4 proceedings no 40237/01; and (b) A grant of development consent will have potentially persuasive effect in the court's exercise of its jurisdiction in any proceedings taken by any person to prevent the Approved Development being occupied in future." 28 The respondent council has filed tightly reasoned written submissions. It is submitted that the building, as built, is not old and accordingly the argument based on s 109H should not be accepted. 29 With respect to the argument that because the building was built otherwise than in conformity with the development consent s 109H(1)(b) is not relevant the council submits the following: "The applicant's assertion depends implicitly upon construing 'pursuant to' to mean 'in accordance with' or 'consistent with'. Therefore, the argument runs, by not constructing the development consistent with the consent, the requirement for a construction certificate does not arise. If this is correct, a developer can build outside the Act, ignore all of its requirements and yet be rewarded with the fruits of that illegality. Rather, the meaning of 'pursuant to' means 'in reliance upon the authority of', as distinct from 'in accordance with' or 'consistent with', to give foundation to the legislation being implemented. The scheme requires a development consent, followed by a construction certificate, followed by construction in accordance with the terms of the consent and construction certificate and thereafter an occupation certificate. Departure from these requirements result in breach. The respondent says that a final occupation certificate cannot be issued consistently with the terms of section 109H(1)." 30 It is further submitted that a construction certificate can only ever be issued before construction work is undertaken. Emphasis is placed on the regulations and the definition of "construction certificate" in s 109C(1)(b) which uses the words "will comply". 31 Although I tentatively held a different view, I have decided that at this stage of the proceedings it is not appropriate to finally resolve the first question. 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. 32 In this respect I believe 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 would 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. 33 For these reasons I decline to answer the first question. The second question is answered - yes. 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