Land and Environment Court New South Wales Medium Neutral Citation: Cessnock City Council v Laila Investments Pty Ltd [2012] NSWLEC 206 Hearing dates: 21 August 2012 Decision date: 21 August 2012 Jurisdiction: Class 4 Before: Pain J Decision: The Court: 1. Declares that the Occupation Certificate issued under Part 4A of the Environmental Planning and Assessment Act 1979, by the Third Respondent on 22 February 2012 (and reissued on 29 March 2012), in relation to Development Consent 8/2004/596/1 granted on 7 April 2008 for six residential units on land at Branxton NSW, is invalid and of no effect. 2. Orders that the matter of costs be reserved. 3. Notes that the parties are to file any notice of motion seeking costs by Tuesday 11 September 2012. Catchwords: CIVIL ENFORCEMENT - declaration of invalidity of occupation certificate made - failure of private certifier to comply with mandatory provision in Environmental Planning and Assessment Act 1979 Legislation Cited: Environmental Planning and Assessment Act 1979 Pt 4A s 109E, 109J, s 109H, s 124 Interpretation Act 1987 Cases Cited: Northern Residential Pty Ltd v Newcastle City Council [2009] NSWCA 141;(2009) 75 NSWLR 192 Category: Principal judgment Parties: Cessnock City Council (Applicant) Representation: Mr P Jayne (solicitor) (Applicant) Ms B K Nolan (First and Second Respondents) Submitting appearance (Third Respondent) Sparke Helmore Lawyers (Applicant) Markham Geikie Farrugia (First and Second Respondents) DLA Piper (Third Respondent) File Number(s): 40598 of 2012 EX TEMPORE Judgment 1In the matter this morning I gave leave to Cessnock City Council (the Council) to file in Court an amended summons seeking a declaration that the occupation certificate issued under Pt 4A of the Environmental Planning and Assessment Act 1979 (the EPA Act) on 22 February 2012 in relation to development consent 8/2004/596/1 is invalid and of no effect. The Third Respondent Mr McGufficke, a principal certifying authority and accredited certifier, has filed a submitting appearance. A further consequential order is sought in relation to the First and Second Respondents, Laila Investments Pty Ltd and Allan Renno, which I will come to in due course. None of the Respondents oppose the making of the declaration. 2In support of its case the Council read an affidavit of Ms Wells, senior planning assessment officer at the Council, sworn 15 June 2012 which sets out the history of this matter. I note simply that in 2003 the land in question was the subject of a subdivision consent. Development consent 8/2004/5961/1 was granted on 7 April 2008 for six residential units on land at Branxton, NSW. Development occurred and a private certifier, the Third Respondent, was appointed. The occupation certificate the subject of these proceedings was issued by the Third Respondent and reissued on 29 March 2012. 3The Council tendered the exhibit to Ms Well's affidavit (exhibit A) containing relevant documents such as the development consent and occupation certificate. The Council also tendered an aerial photograph of the property, a site plan and a copy of the modified development consent following a s 96 modification application (referred to below in par 5). 4Section 109H(2) of the EPA Act provides: An occupation certificate must not be issued unless any preconditions to the issue of the certificate that are specified in a development consent or complying development certificate, or any requirements of a planning agreement referred to in section 93F that, by its terms, are required to be complied with before such a certificate is issued, have been met. 5The Council submitted that essential conditions of the development consent were not complied with. Compliance with those conditions was specifically required by the terms of the development consent before an occupation certificate could be issued, a requirement of s 109H(2) of the EPA Act. Ms Wells' affidavit identifies those conditions not complied with as 1, 7, 14, 15, 39 and 41 (par 37). I am advised that since the commencement of these proceedings there has been a s 96 modification application in relation to condition 15 which has been determined favourably. Condition 15 is no more and is replaced by condition 45. 6The amended summons relies on the failure to comply with conditions 7, 14, 39, 41 and 45. Condition 7 required concurrence with the Roads and Traffic Authority to the proposed road works and opening onto the New England Highway before the issue of an occupation certificate. Condition 14 required the construction of a 6m wide vehicular access to the property prior to the issue of a construction certificate. Condition 39 required compliance with all the conditions of the consent before occupation could commence. Condition 41 required the identification of visitor parking spaces. Condition 45 required construction of a specified kind of intersection at the access to the development on the New England Highway. 7I note that a further order in relation to the Third Respondent restraining him from issuing any further occupation certificate was also sought in the amended summons. I have been informed this morning that this order is no longer sought. 8Interestingly, there seems to be no case in the Court which has had to consider when an occupation certificate can be declared invalid. I have been referred to a case which does provide some assistance by analogy. This was an appeal from this Court to the Court of Appeal in Northern Residential Pty Ltd v Newcastle City Council [2009] NSWCA 141;(2009) 75 NSWLR 192. That case considered the issue of validity of subdivision certificates under Pt 4A of the EPA Act which provisions are in slightly different terms to the section that is before me concerning occupation certificates. I note particularly that in the unanimous judgment Hodgson JA (Tobias JA and Simpson J concurring) analyses the differences between the sections relevant to subdivision certificates in particular s 109J and s 109E(3) at [34] - [57]. His Honour identifies at [57] that the intention of the legislature appears to be that the requirements of s 109J (preconditions to the issue of subdivision certificates) are conditions which must be met in order for subdivision certificates to be valid, unlike s 109E(3) (principal certifying authority required to be satisfied of certain matters). The declaration of invalidity of the relevant subdivision certificates was overturned in the Court of Appeal because no breach of either s 109E(b) or s 109J was found by the Court of Appeal. 9I agree with the Council's submissions that s 109H(2) specifies a mandatory requirement that an occupation certificate must not be issued unless any preconditions to the issue of a certificate specified in the development consent are complied with. That did not occur in this case. That mandatory requirement is the same as the s 109J requirements considered in Northern Residential. The chapeau of s 109J and s 109H(2) is the same, "... must not be issued ...". The issuing of the occupation certificate by the Third Respondent was therefore a breach of the EPA Act. In these circumstances there is a basis for the declaration of invalidity of the occupation certificate the Council seeks in prayer 1 of the amended summons filed in Court. Under the broad powers the Court has under s 124 of the EPA Act to remedy breaches of the EPA Act, I consider that it is also appropriate that I exercise my discretion to make the declaration as sought by the Council today given the substantial nature of the work required by the development consent conditions, particularly concerning traffic access to the New England Highway, not complied with before the issue of the occupation certificate. 10It is necessary to consider the utility of making a consequential order that the First and Second Respondents be restrained from permitting, allowing, or authorising the use of the buildings authorised by the consent by any person (as defined under the Interpretation Act 1987) in reliance on the occupation certificate until such time as a final occupation certificate under Pt 4A of the EPA Act is granted for those buildings. I have been referred in exhibit A to an undertaking given by the Second Respondent on behalf of the First Respondent to the Council. It does not in its terms refer to not proceeding until a new occupation certificate has been issued. It does refer in its terms to not taking action in relation to the sale of land for any of the six units to be developed until such time as the Council issues a release. Given that I have declared the occupation certificate invalid, it cannot be relied on in any event. I do not consider there is utility in making the consequential order sought and I will not do so. Orders 11The Court: (1)Declares that the Occupation Certificate issued under Part 4A of the Environmental Planning and Assessment Act 1979, by the Third Respondent on 22 February 2012 (and reissued on 29 March 2012), in relation to Development Consent 8/2004/596/1 granted on 7 April 2008 for six residential units on land at Branxton NSW, is invalid and of no effect. (2)Orders that the matter of costs be reserved. (3)Notes that the parties are to file any notice of motion seeking costs by Tuesday 11 September 2012. 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: 14 September 2012