Bankstown City Council v Ramahi (No 2) [2016] NSWLEC 34

Land and Environment Court New South Wales

Medium Neutral Citation: Bankstown City Council v Ramahi (No 2) [2016] NSWLEC 34 Hearing dates: 30 November 2015, 2-3 December 2015 Date of orders: 08 April 2016 Decision date: 08 April 2016 Jurisdiction: Class 4 Before: Craig J Decision: 1. Direct the parties to bring in agreed, or in the absence of agreement, competing short minutes of orders reflecting my reasons for judgment.

2. Stand over proceedings to 9.00am on Thursday 21 April 2016 for the purpose of making final orders.

3. Direct that by 4.00pm on 20 April 2016 the parties provide to my Associate a draft of the short minutes of orders for which they contend. Catchwords: ADMINISTRATIVE LAW - judicial review - ss 76A and 85A of the Environmental Planning and Assessment Act 1979 (NSW) ("EPA Act") - whether complying development certificates issued by accredited certifier for the erection of secondary dwelling valid - complying development within the meaning of cl. 23 of the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) ("ARH SEPP") - whether it was reasonably open to certifier to conclude plans demonstrated compliance with the relevant provisions of the ARH SEPP - assessment of the standard of unreasonableness - misunderstanding of statutory obligation - certificates granted in breach of the EPA Act - right of occupation - validity of interim occupation certificate - s 109H(3) of the EPA Act – whether complying development certificate capable of founding exercise of power to issue interim occupation certificate - interim occupation certificate invalid - CIVIL ENFORCEMENT - declarations and remedial orders - breadth of Court's discretion to grant relief under s 124 of the EPA Act - whether remedial action required to address breach - substantial breaches of the ARH SEPP - public interest - integrity of planning controls - responsibility of land owner where participated in the conduct giving rise to the breach or taken advantage of the breach - declaratory and remedial orders proposed. Legislation Cited: Building Professionals Act 2005 (NSW) Bankstown Local Environmental Plan 2001 Bankstown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 (NSW) Environmental Planning and Assessment Regulation 2000 Standard Instrument (Local Environmental Plans) Order 2006 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 Bankstown City Council v Ramahi [2015] NSWLEC 74 Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; 183 LGERA 228 CTI Joint Venture Co Pty Ltd v CRI Chatswood Pty Ltd (in liq) (Receivers and Managers Appointed) (No 3) [2012] NSWLEC 6 D'Amore v Independent Commission Against Corruption [2013] NSWCA 187; 303 ALR 242 Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190 King v Bathurst Regional Council [2006] NSWLEC 505; 150 LGERA 362 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No 2) [1944] HCA 42; 69 CLR 407 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335