Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd

1. [1]

   BASTEN JA: On 23 July 2019 the appellants commenced proceedings in the Land and Environment Court seeking declarations and restraining orders in relation to a development then under way on land at Marmaduke Street, Burwood, near Burwood railway station. The appellants owned land on an adjoining site at George Street, Burwood. Three respondents, both in this court and in the Court below, were (i) the registered proprietor of the development site, (ii) the contractor carrying out construction work on the site and (iii) the registered proprietor of an adjoining site involved in the development. The fourth respondent, Mr Maurice Freixas of Dix Gardner Group Pty Ltd, was the principal certifying authority for the development. The fifth respondent, Burwood Council, was the consent authority which approved a relevant development application. [1] The fourth and fifth respondents filed submitting appearances, both in this Court and in the court below.

2. [2]

   The trial in the Land and Environment Court ran before Duggan J over 16 days. Judgment was delivered on 5 March 2020, relevantly dismissing the proceedings. [2] The only affirmative result achieved by the appellants was to obtain the removal of a crane base used by the first and second respondents from land owned by the third respondent. Why the third respondent is a party to the appeal is not apparent. It is true that the notice of appeal sought an order that the third respondent pay the applicants’ costs below on relation to “ground 6”, which was the ground dealing with the crane base. However, the claim for costs at trial was not the subject of submissions in this Court and will be disregarded.

3. [3]

   Before outlining the relevant factual background and legislative provisions, it is convenient to note the limited scope of the appeal. As explained by senior counsel for the appellants in opening in this Court: [3]

4. [4]

   There was no dispute that a construction certificate has no retrospective effect if it is issued after the building work to which it relates has been commenced: see s 109F(1A) of the Planning Act as then in force. [4]

Factual background

1. [5]

   The site in question was known by its location as 1-3 Marmaduke & 7 Deane Street Burwood. The development application had been accompanied by building plans prepared by ABC Consultants (structural and civil engineers) which made specific provision for excavation to a particular level and shoring and piling which would accompany the excavation. A development consent issued on 6 March 2013 described the development in the following terms:

2. [6]

   A second development consent, dated 3 March 2016, provided for the addition of three further levels containing eight residential apartments. The present relevance of the 2016 consent lay in a requirement for a “voluntary planning agreement (VPA)”, which was to be executed (and payment made to the Council) prior to the issuing of a construction certificate. The VPA provided for a contribution to be paid to the Council in relation to the additional development. The contribution (subject to indexation) was a levy of 4% of the cost of carrying out the development, then calculated at $136,480.

3. [7]

   The trial judge held that the VPA condition did not apply to the excavation, shoring and piling works. That finding was not challenged; rather, the appellants relied on the fact that by April 2019 the Council had expressed a different view to Mr Freixas, making it unlikely that he would have issued a construction certificate thereafter, absent compliance with the condition (which, it was contended, did not occur until some months later).

4. [8]

   On 8 March 2018 Mr Freixas issued a construction certificate (known as CC1) for the “bulk excavation, shoring & piling”. The certificate stated:

5. [9]

   In December 2018 the first respondent purchased the site with the relevant approvals. However, TQM Pty Ltd, presumably a company related to the second respondent, had been the builder nominated on the construction certificate in March 2018. (It is possible that the name of the builder on the construction certificate had been abbreviated and it was in fact the second respondent.)

6. [10]

   Mr Maroun Taouk, the director of the second respondent, gave evidence (accepted by the trial judge) that test bores conducted on the site in or about January 2019, discovered bands of soft rock, which led him to seek a variation of the engineering plans to allow for deeper excavation. On 5 March 2019 Mr Taouk met Mr Freixas and handed him fresh plans, prepared by TQM Consulting Engineers and dated 21 December 2018. The substance of the conversation was set out in the respective affidavits of Mr Taouk and Mr Freixas. Mr Freixas stated:

7. [11]

   Mr Taouk stated that on 6 March 2019 Mr Freixas called him and the following exchange occurred:

8. [12]

   The new plans were referred to as the “TQM plans”. It is not disputed that they involved a variation of the development. Not only did they provide for a deeper excavation across the site, but they also involved a different system of shoring with bracing slabs rather than raked struts on the northern wall, and a different configuration for the piles.

9. [13]

   What happened to the TQM plans thereafter was a matter in dispute. Mr Taouk gave evidence that he had not requested “an amended construction certificate” and was not provided with one. [6] He agreed that he had not asked Mr Freixas for the plans to be stamped, and only requested stamped plans once the proceedings in the Land and Environment Court had commenced. [7]

10. [14]

    Mr Freixas stated in his affidavit that he was aware that Mr Maroun Taouk had attended the Dix Gardner offices on 9 August 2019 and obtained a copy of the revised shoring and piling methodology plans. He annexed a copy of the plans he understood to have been provided to Mr Taouk; the stamp carried the name of the firm, the certificate number of CC1 and the date on which CC1 was approved, namely 8 March 2018. It also contained the words “construction certificate approved”. All the details relating to CC1 were correct. The stamp did not, however, reveal the date on which it was affixed, which was clearly not 8 March 2018.

11. [15]

    On 12 August 2019 Mr Freixas sent a letter to TQM which stated:

12. [16]

    For reasons explained below, the new notation has no significance for the resolution of the issues before the Court. The trial judge took a similar view. [9]

13. [17]

    It is necessary to refer briefly to one further matter, which provided background to the appellants’ claims. On 16 January 2019, TQM sought a further construction certificate for the building works involving the tower. That application, and the certificate granted by Mr Freixas were known as “CC2”. With respect to the second development approval (for the additional units), a memorandum by Mr Freixas to TQM dated 17 January 2019 noted that the VPA was outstanding. That comment was reiterated in a further memorandum from Dix Gardner dated 2 April 2019, and finally in a memorandum dated 16 July 2019. The appellants noted that, in an email dated 11 April 2018, the Council had reminded Mr Freixas that the second development approval was subject to a requirement for a VPA and that the VPA was to be executed and the fee paid prior to the issue of a construction certificate. The appellants submitted that Mr Freixas, being on notice of this requirement, would not in fact have issued a construction certificate absent the condition being satisfied.

14. [18]

    However, there was no evidence that Mr Freixas understood the requirement for the VPA to affect the issue of a construction certificate for the excavation, shoring and piling work which had been issued pursuant to the earlier consent. In his affidavit, in respect of which he was not required for cross-examination, Mr Freixas stated that he had a telephone conversation with the manager of compliance at Burwood Council in April 2018 in the course of which he was reassured that the issuing of CC1 did not contravene the requirement, then unfulfilled, for a VPA.

15. [19]

    Although the trial judge found that the requirement for a VPA did not condition the issue of CC1, a finding not challenged on the appeal, the appellants nevertheless contended that the question to be addressed was whether Mr Freixas had believed it conditioned the issue of CC1 in March 2019, in which case he would have been unlikely to have issued a modified CC1 absent compliance with the condition. Since the only evidence was that he had received an assurance that the issue of CC1 absent compliance was not a problem, in April 2018, there was no evidence upon which the judge could have found Mr Freixas believed it to be a problem in March 2019. This evidence need not be discussed further.

Issues on appeal

1. [20]

   The focus of the present appeal was a variation in the depth of the excavation. It is not in doubt that the excavation proceeded to a level below that indicated on the original engineering plans. The respondents’ case was that they struck “soft rock” in the course of preliminary drilling, which required that they go to a deeper level to obtain sound footings for the foundations. The appellants’ case was that the respondents intended to develop a fifth basement level and that the claim to have struck “soft rock” was merely a cover for the real intention involving an expansion of the development.

2. [21]

   The first question addressed by the trial judge was whether there had, as alleged by the appellants, been “over excavation”. The question was whether the 2013 development consent provided for a building excavation level (BEL) below which excavation could not take place. The judge rejected that claim, concluding:

3. [22]

   The judge then reasoned that, in order to succeed on the first ground before her, it was necessary for the appellants to establish “that no part of the reason for the excavation related to meeting the performance criteria set by The Consent or that the method adopted did not meet the performance criteria in The Consent.” [10] She rejected the claim that the excavation was unlawful based on inconsistency with the terms of the consent. That finding was not challenged.

4. [23]

   The trial judge made findings with respect to the events of 5 and 6 March 2019. The judge held that the TQM plans were provided to Mr Freixas on or about 5 March 2019. It is common ground that the excavation, shoring and piling works were in fact carried out in accordance with those plans. The case put by the appellants was twofold. First, it was submitted that if CC1 was in fact modified to incorporate the plans, that did not occur until at or about the time that Mr Freixas stamped the plans, namely 9 August 2019. By that stage excavation, shoring and piling works had been substantially carried out and the modification was ineffective to make that development work lawful. Secondly, the appellants contended that no modification of a construction certificate could occur without a written application. Whatever happened on 5 and 6 March 2019, there was no written application to modify the construction certificate. Absent a valid application for modification, the appellants submitted that, even if purportedly modified, the modification was invalid.

5. [24]

   Having dismissed the submissions that there was any breach of the development consent as a result of the extent of the excavation, the judge said it was “unnecessary” for her to determine whether the consent was modified to incorporate the TQM plans. Accordingly, issues which otherwise arose with respect to ground 1 of the application before the trial judge were delayed until she considered the scope of ground 3, which alleged that building works comprising shoring and piling had been undertaken in breach of CC1.

6. [25]

   The evidence of Mr Maroun Taouk and Mr Freixas, accepted by the trial judge, was that the TQM plans were handed to Mr Freixas at the meeting on 5 March 2019. The result of the meeting, according to the respondents, was agreement between the builder and the certifying authority (Mr Freixas) that the excavation, shoring and piling work could be undertaken in accordance with the TQM plans. The appellants submitted that such an agreement, to be effective, required a valid modification of CC1.

7. [26]

   The need for a modification of CC1 was accepted. The trial judge held:

8. [27]

   The trial judge then addressed whether there was an application to modify CC1:

9. [28]

   The trial judge accepted that reference to “revised” plans, together with the provision of copies of the plans, marked “issued for CC”, to the certifying authority constituted an application for modification. The effect of the plans was to vary aspects of the work identified in the ABC plans.

10. [29]

    The trial judge then considered whether there was a modification of the methods for shoring and piling works envisaged under CC1. She concluded that there was in that the method of shoring and piling required by the ABC plans was varied, though not in any fundamental respect. [11] The judge then asked whether the modification to incorporate the TQM plans was in fact approved by the certifier. As the judge noted “[t]his issue arises independently of any issue as to whether the approval, if granted, was sufficient to meet the requirements of the regulations and, if not, what the consequence of such breach of the regulations would be.” [12] The following discussion assumed that the approval was conveyed by the stamping of the plans. The judge accepted that, as revealed by the copy of the plans produced by Mr Freixas on 9 August 2019, the TQM plans had in fact been stamped and therefore formed part of CC1. She dismissed the later letter from Mr Freixas purporting to change the stamp on the plans as legally ineffective. [13] The judge’s findings as to approval were contained in the following passages:

11. [30]

    The range of dates referred back to an earlier statement by the judge:

12. [31]

    The significance of the date on which approval was given was that the approval was a necessary element of the CC1, so that the variation would only be effective if given before the work was done.

13. [32]

    Relevantly for present purposes, the trial judge then identified alleged breaches of the regulation:

14. [33]

    With respect to (1), the judge concluded:

15. [34]

    The judge rejected the assumption underlying (2) and there is no challenge to that ruling. [14] With respect to (3), the judge found that stamping the TQM plans did not constitute modification of the certificate. The judge concluded that there was a breach of the regulations which required Mr Freixas to produce an amended certificate. [15] Whether the judge was correct in the underlying assumption as to the requirement of the regulations will be addressed below. With respect to (4), the judge concluded:

16. [35]

    Again, it will be necessary to consider the requirements of the Regulation with respect to “inspections” and changes to the certificate.

17. [36]

    Finally, the judge concluded that, to the extent that there were breaches of the regulations on the part of Mr Freixas, they did not invalidate the certificate, or render the work done in compliance with the TQM plans unlawful. The reasoning in that respect was based on the principles established by this Court in Burwood Council v Ralan Burwood Pty Ltd (No 3). [16] The appellants challenged the reasoning in this respect, which will be considered below.

18. [37]

    Finally, the trial judge addressed the question of whether works the subject only of the TQM plans were carried out prior to 6 March 2019, being the earliest date upon which the TQM plans were approved.

19. [38]

    The trial judge dealt with the evidence relating to this issue at [225]-[231]. The judge noted that there was “very little evidence” as to when particular work was undertaken, the submissions before her relying entirely upon evidence given by Mr Taouk in cross-examination, set out in full at [226]. The judge’s findings with respect to that evidence were as follows:

20. [39]

    The judge further noted, favourably to the appellants’ case, that there was some “additional evidence not referred to in support of the submission”. [17] The evidence involved some further brief questions and answers given by Mr Taouk in cross-examination. The final conclusions of the judge were as follows:

Relevant legal provisions

1. [40]

   Identification of the relevant legal provisions turns on the operation of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) (“2017 Regulation”). The operation of this Regulation has caused considerable difficulties; and worse, they are not apparent on the face of the legislation. It is necessary to take a chronological approach to resolve the issues.

2. [41]

   The first step is to note that Pt 4A of the Planning Act was repealed on 1 March 2018 on the commencement of the Environmental Planning and Assessment Amendment Act 2017 (NSW) (“2017 Amendment Act”). [18] The construction certificate CC1 was issued on 8 March 2018, seven days after the commencement of the 2017 Amendment Act. Absent a transitional provision, it was therefore issued under Div 6.3 of the current Act.

3. [42]

   The first relevant transitional provision, which took effect as part of Sch 13 of the 2017 Amendment Act, was cl 14:

4. [43]

   Clause 14(1) was not engaged; however, the application for the certificate was made under Pt 4A, and is therefore within cl 14(2). Nevertheless, upon the determination of the application a certificate is issued to which sub-cl (1) applies. That is, the certificate becomes a certificate under the new Pt 6 of the Planning Act.

5. [44]

   The second step turns on the operation of cl 18 of the 2017 Regulation, which came in to force on 1 March 2018, [19] and now relevantly provides:

6. [45]

   The phrase “former building and subdivision provisions” was defined to mean: [20]

7. [46]

   Clause 18 therefore took effect at the time of the 2017 Amending Act and effectively postponed the operation of Pt 6 of the Act until 1 December 2019. The result was that CC1 was governed by Pt 4A and the regulations made under that Part.

8. [47]

   The third step was the introduction of cl 18A, which came into force on 1 December 2019: [21]

9. [48]

   It appears to have been common ground below, and in this Court, that the Planning Act as in force prior to amendments made by the 2017 Amendment Act continued to operate. That was because, pursuant to cl 18A(b) of the 2017 Regulation the former building and subdivision provisions continued to apply “to or in respect of” a development consent granted before 1 December 2019. Both development consents relevant to the present matter were granted prior to that date.

10. [49]

    It is necessary, however, to identify the relevant provisions relating to enforcement proceedings governing these certificates. Before assaying that task it is convenient to note the source of the regulations made under Pt 4A, referred to in cl 4(b), set out at [45] above. Part 4A included, relevantly, ss 109C-109Q. The last provision read as follows:

11. [50]

    Section 109C(1) provided for certain certificates to be issued for the purposes of Pt 4A, including:

12. [51]

    Section 81A, as presently relevant, provided as follows:

13. [52]

    It is not entirely clear why the regulation-making power contained in Part 4A was not sufficient without s 81A(5), but nothing turns on this apparent duplication of authority. Part 4A provided for the appointment of certifying authorities (now known as certifiers) and the appointment of a principal certifying authority for each development. Otherwise relevant for present purposes are the following parts of s 109F:

14. [53]

    Before turning to the regulations, it may be noted that the savings provisions set out above do not in terms refer to s 80 of the Planning Act. The principal purpose of s 80 was to confer power on a consent authority to determine a development application and make consequential provision in relation to development consents. In particular, s 80(12) read as follows:

15. [54]

    To the extent that s 80 no longer applies with respect to this development, the equivalent provision is now found in s 4.16(12). The effect of this provision is important in the appellants’ case, which is that the plans form part of the construction certificate, which in turn forms part of the relevant development consent. Variations to the construction certificate or the plans can only be effected in accordance with the Act and regulations, which must be construed bearing in mind that the effect of any variation will itself form part of the development consent. Development consents are the legal authority with which any lawful development of land must comply.

Formalities for varying plans

1. [55]

   It is convenient to address the content of the regulations in considering the issues to which they are relevant.

2. [56]

   Part 8 of the Environmental Planning and Assessment Regulation 2000 (NSW) (“the Planning Regulation”) is headed “Certification of Development”; Division 2 relates to construction certificates. Only one provision deals with “modifications”:

3. [57]

   Despite the heading to the clause, the clause itself referred not to modification of a construction certificate, but to modifying “the development the subject of the … certificate.” The first question is therefore whether there was an application to modify the development, pursuant to cl 148(1).

4. [58]

   The requirements with respect to applications for construction certificates were found in the following provisions of Div 2:

5. [59]

   Finally, the Planning Regulation provided for the formalities attending the determination of an application:

6. [60]

   There was passing reference in the appellants’ submissions to the obligation to record site inspections by the certifier, but neither the scope of the obligation to inspect, [22] nor whether it was complied with, was the subject of findings below. Clause 142 was relied on only in support of the contention that the determination of the modification application had to comply with cl 142 and, therefore, if there were no compliance with cl 142 it should be inferred that there was no approval of the application.

Ground 1 – form of application

1. [61]

   The appellants did not challenge the findings as to what occurred; rather, they challenged the inference that whatever approval may be inferred from the words used by Mr Freixas, it did not involve a modification of the construction certificate. The appellants submitted that inference was not open. The appellants’ written submissions did not clearly distinguish between evidence from which it might be inferred that no application was made, and evidence from which it might be inferred that no modification was approved.

2. [62]

   The requirement that an application be delivered by hand, sent by post or transmitted electronically (cl 139(1)(c)) assumes that the application will be in documentary form. However, it is not required to be in a particular form unless the certifying authority so requires: cl 139(1)(b) and cl 141. There was no evidence that Mr Freixas required a proposed variation of plans to be in a particular form. The judge was satisfied that the plans themselves constituted the necessary writing: [23]

3. [63]

   There may have been some doubt as to whether the TQM plans themselves required a modification of the existing construction certificate, or whether what was sought was approval of the plans which, if followed, would comply with the existing construction certificate. The approval might require an amendment or modification of CC1 under the heading “Approved Plans”, and the attachment of the new plans to the certificate. These were steps to be taken by the certifier: an application to vary the plans did not need to spell out what the certifier was to do with them, once approved. The proposed changes were properly set out, and in detail, in the plans which were provided to the certifier. Accordingly, while an application to modify the plans accompanying the certificate was necessarily to be in writing, that condition was satisfied, as found by the trial judge.

4. [64]

   Ground 1 should be rejected.

Ground 2 – stamping of new plans

1. [65]

   There was a degree of ambivalence on the part of the appellants as to the nature of the challenge being raised, if it were found that an application to modify the development had been made. Ground 2 alleged error on the part of the trial judge in failing to find that “the TQM plans were first stamped by [Mr Freixas] on or about 9 August 2019”. The assumption underlying this ground was that a modification of the construction certificate occurred when, and only when, the plans were stamped by the certifier.

2. [66]

   The Planning Act does not expressly provide for modification of a construction certificate. Section 80(12) of the Planning Act assumes that a construction certificate may be the subject of “variations”: the term modification is not used. Clause 148 of the Regulation refers to a person applying “to modify the development the subject of the … certificate.” The Planning Regulation, cl 147(1), requires that a construction certificate include a statement as to the effect of compliance with “documentation accompanying the application for the certificate”. It anticipates that there may be “modifications … shown on that documentation”. The modifications are to be “verified by the certifying authority”. It is possible that a modification is made prior to the certificate issuing; alternatively, a modification may be made after the certificate is issued, in which case the clause does not envisage a modified certificate, but rather verification of the modification on the document which accompanied the application. That may be effected by a stamped form of verification, but the regulation is silent as to the mechanism of verification, except that it must be “shown” on the documentation, such as the new plans.

3. [67]

   Clause 139, which applied to proposals to modify the development (cl 148), required that the certifier “endorse the application with the date of its receipt”. That did not happen in this case, but it was not contended that that omission invalidated any resulting approval.

4. [68]

   It is clear that the certifier did not give the Council notice of his determination to approve the new plans, as required pursuant to cl 142(2), but that in itself was not said to invalidate the approval. Rather, it was contended that the omission demonstrated there was no approval and that the plans were in fact stamped in about August 2019 in response to the commencement of the proceedings. [24]

5. [69]

   These breaches of the planning regulations were included in the four categories identified by the trial judge at [198] and discussed at [32]-[34] above. As noted, the breaches which were established were found not to have resulted in the invalidity of the approval which, as a matter of fact, had been given on 6 March 2019. That reasoning turned on the judgment of this Court in Burwood Council v Ralan.

6. [70]

   In Burwood Council v Ralan, this Court held that a construction certificate which failed to comply with s 109F(1) of the Planning Act and cl 145(1) of the Planning Regulation was not therefore invalid. The basis of invalidity relied on in that case was inconsistency between the requirements of the construction certificate and the development consent. No such inconsistency is relied on in the present case. Nevertheless, it would be a surprising result if compliance with plans which were conceded to be consistent with the development consent and had, in each case, been approved by the certifying authority, could result in invalidity of the development undertaken in accordance with them.

7. [71]

   If the failure of the certifier to notify the Council of the approval of the new plans did not invalidate the development, the appellants nevertheless maintained that non-compliance with the regulations should have led the judge to infer that no approval was given in March 2019. However, as noted above, there was ample evidence to support the finding that the certifier approved the new plans on 6 March 2019.

8. [72]

   Otherwise, the dispute as to whether the plans were in fact properly stamped by the certifying authority on 9 August 2019 was primarily relevant only to the first ground of appeal. It was not in dispute that the piling and shoring work and the excavation were substantially completed by that date. However, if the appellants failed on that ground, they asserted that significant piling and shoring works had been carried out prior to 6 March 2019. That matter was addressed in ground 3.

Ground 3 – work done prior to 6 March 2019

1. [73]

   The judge’s finding with respect to this issue, set out above, was to the effect that the evidence failed to persuade her as to what piling work had been done prior to 6 March 2019. In the course of submissions from counsel for the respondents the judge expressed doubts as to the extent of the evidence addressing that issue. Senior counsel for the appellants interrupted (with the respondents’ consent) to note that the evidence had been identified at “para 64 of our submissions, and it’s the entire transcript referred to at footnote 51.” The transcript reference was to pages 524(42)-527(18). The judge looked at the material and said:

2. [74]

   The appellants needed to establish more than the fact that some excavation had been undertaken prior to 6 March 2019; clearly the RL which identified the extent of the excavation approved under the ABC plans had not then been reached. Further, it was understood that, prior to that part of the excavation which required shoring and piling, it was necessary to undertake preparation work, clearing the site, removing overspoil and testing for the piling. Mr Taouk accepted that piling would have started in mid to late January and that piling work carried out in February was not in accordance with the ABC plans. The problem, as identified by the trial judge, who had heard extensive evidence from the experts as to the precise differences between the two sets of plans and the areas of the site which were the subject of the differences in piling, was that the evidence was imprecise as to what piling was undertaken in February which differed from the ABC plans, and whether it was significant in extent. Mr Taouk was unable to provide that information. None of the experts had seen the site in February 2019.

3. [75]

   In the course of argument in this Court, the appellants relied upon a “Nearmap” image (being an aerial photograph) dated 4 March 2019. The image shows excavation occurring on the site but it is not possible, without expert evidence, to draw any conclusions as to the depth of the excavation, nor as to the extent of shoring and piling (if any) which had been undertaken at that stage.

4. [76]

   The respondents pointed out that the image was not shown to Mr Taouk and was not introduced until day 12 of the trial, being shown to the third respondent, to establish that the crane base had been constructed or partly constructed on his land by 4 March 2019. [25] No questions were asked about any aspect of the construction site itself.

5. [77]

   It is at least doubtful that inferences adverse to the first and second respondents could be drawn from that document without it being placed before the principal witness for the second respondent, Mr Taouk. Further, it does not appear that the trial judge was asked to draw inferences based on this document of the kind now sought to be drawn by this Court.

6. [78]

   There is, as the respondents properly noted, a further difficulty with the appellants’ case with respect to the proposed inferences. To know whether what was shown in the image demonstrated significant work consistent only with the TQM plans would have required careful identification by reference to two sets of engineering plans, without the assistance of the experts. There can be no doubt that the trial judge, who had access to expert opinion not available to this Court, would have been in a far superior position with respect to that exercise. The fact that she was not invited to undertake it is fatal to the appellants’ case on appeal in this respect.

7. [79]

   Ground 3 must be rejected.

Orders

1. [80]

   Against the possibility that this Court might uphold some aspect of the appeal, the respondents provided a large volume of material as an exhibit to their solicitor’s affidavit, setting out the stage reached by the development since the hearing in the Land and Environment Court. The material would have raised large questions as to the discretionary relief available to the appellants. In the event, it is not necessary to address that material, except to note the unresolved issues it would raise. Otherwise, the appropriate course is to dismiss the respondents’ motion seeking to rely on further evidence. This step should not affect the order for costs, the respondents having succeeded on other grounds.

2. [81]

   The appellants’ grounds of appeal having been rejected, the Court should make the following orders:

   1. (1)

      Dismiss the appeal from the judgment of the Land and Environment Court delivered on 5 March 2020.

   2. (2)

      Order that the appellants pay the first-third respondents’ costs of the appeal on the ordinary basis and the costs of the fourth and fifth respondents on a submitting basis.

3. [82]

   PAYNE JA: I agree with Basten JA.

4. [83]

   BRERETON JA: I agree with Basten JA.