Dyldam Developments Pty Ltd v The Owners – Strata Plan 85305

WHITE JA: This is an application for leave to appeal from orders of the Appeal Panel of the Civil and Administrative Tribunal (Armstrong J President, L Pearson Principal Member) of 16 September 2019 (Dyldam Developments Pty Ltd v The Owners – Strata Plan No. 85305 [2019] NSWCATAP 229). The Appeal Panel dismissed an internal appeal from a decision of the Tribunal (D Goldstein Senior Member) dismissing an application by the present applicant (Dyldam) for an order that the claim brought by the Owners – Strata Plan 85305 under s 48K of the Home Building Act 1989 (NSW) (“the Home Building Act”) was commenced out of time.

An appeal from the Appeal Panel lies to the Supreme Court with leave on a question of law (Civil and Administrative Tribunal Act 2013 (NSW), s 83(1)). The questions of law raised by the amended summons are important. Leave to appeal should be granted.

On 4 October 2018 the respondent filed a home building application in the Tribunal in respect of building works said to have been carried out by Dyldam in 2010-2011 for a property comprising a three-storey residential apartment building in Bangor Street, Guildford. It alleges that Dyldam carried out residential building work under a contract with the developer. The respondent claims to be entitled to the benefit of statutory warranties under the Home Building Act and complains of various breaches of those warranties.

Dyldam contended that the application was brought out of time. Prior to 1 February 2012 s 18E of the Home Building Act provided:

Section 18E(1) was amended with effect from 1 February 2012 by the Home Building Amendment Act 2011. However, the amendment does not apply in respect of a contract for residential building work entered into before its commencement (Home Building Act, Sch 4, Pt 19, cl 109).

Section 3C was introduced to the Home Building Act by the Home Building Amendment Act 2014 (NSW). It relevantly provides:

It is common ground that s 3C applies (Home Building Act, Sch 4, Pt 20, cl 121).

Dyldam contended that the proceedings were commenced more than seven years after the issue of occupation certificates that authorised the occupation and use of the whole of the building (s 3C(2)(a)).

In 2011 the Environmental Planning and Assessment Act 1979 (NSW) (“the EPA Act”) contained the following relevant provisions concerning the issue of an occupation certificate. Part 4A of the EPA Act (headed “Certification of development”) included s 109C that defined an “occupation certificate” as follows:

Section 109D(1)(c) provided:

Section 109E provided:

Section 109H provided:

Subsection 109I(1) provided:

Section 109M provided:

Contravention of s 109M was an offence.

The development consent for the work was granted by Holroyd City Council on 23 June 2004. The development consent included a term that either the Council or a private certifier was to be appointed as the principal certifying authority for the development in accordance with s 109E of the Act.

The development consent included the following terms:

Regulation 155 of the Environmental Planning and Assessment Regulation 2000 (NSW) (“the EPA Regulation”) provided:

Dyldam appointed DixGardner Pty Ltd (“DixGardner”) as the principal certifying authority.

On 5 September 2011 Mr Lyall Dix of DixGardner issued a document styled an occupation certificate. The type of certificate was identified as “interim”. The certificate was said to include attachments, including a Final Fire Safety Certificate. The certificate included the following:

The certificate included the following:

The certificate also included a schedule entitled “Fire Safety Schedule – Amended”. It stated:

How a fire safety certificate could have been issued for the building if the essential fire safety measures referred to in the fire safety schedule were still proposed and were yet to be implemented can only be guessed at.

On 5 September 2011 DixGardner wrote to the general manager of the Holroyd City Council as follows:

On 9 September 2011 Mr Dix for DixGardner issued a further occupation certificate, again described as an “interim” certificate. It relevantly stated:

It included the same six dot point certification as did the certificate of 5 September 2011 quoted at [21] above.

In its letter to the Council of 9 September 2011 DixGardner stated that:

It was an agreed fact that on 28 September 2011 a road work certification was received in respect of the development and was provided to DixGardner on 5 October 2011.

It was common ground on appeal that by 5 September 2011 the building work had been completed. What was outstanding was compliance with conditions of the development consent regarding certification of playground equipment (condition 94), the registration of a positive covenant and restrictions on use of an on-site stormwater detention (condition 107), roadworks (conditions 109-114), and a design verification statement (condition 116). When the second “interim” certificate was issued, the conditions remaining to be satisfied were conditions 107 and 109-114.

On or about 12 October 2011 DixGardner issued a final occupation certificate. It contained no “excluded development conditions”.

The proceedings were commenced within seven years of the issue of the final certificate, but more than seven years after the issue of the certificates described as interim certificates.

The certificates issued by DixGardner dated 5 and 9 September 2011 contained internal contradictions. They both stated that they related to the whole of the building works, but then under the heading “Description of part (if applicable)” included a notation that the specified conditions of the development consent were excluded. But the “description of part” was not applicable.

Section 109H(2) of the EPA provided that an occupation certificate must not be issued unless any preconditions to the issue of the certificate specified in a development consent had been met. The conditions referred to in the certificates which were “excluded” were preconditions to the issue of an occupation certificate, whether interim or final.

Moreover, under s 109H(1) in the circumstances of the present case, an interim occupation certificate would be one authorising a person to commence occupation or use of a “partially completed new building”. The building was not partially completed.

Nonetheless, Dyldam submitted before Senior Member Goldstein that the certificates of 5 and 9 September 2011 authorised the occupation and use of the whole of the building and therefore the application had been brought out of time (Reasons of D Goldstein at [12]). The Senior Member found that because the certificates had been issued in breach of s 109H(2) of the EPA Act, those certificates were not validly issued and did not authorise the occupation and use of the whole of the building. He found that the certificates were invalid (at [22]-[25]).

Dyldam contended before the Appeal Panel that the Senior Member erred in law on the following grounds:

Dyldam relied upon the certificates as authorising the occupation and use of the whole of the building, but denied the Tribunal’s authority to decide whether the certificates had that effect. It contended that the Tribunal had to take the certificates as having the effect stated on their face.

Dyldam did not dispute that the certificates had been issued in breach of s 109H(2). It denied that the breach of that provision invalidated the certificates.

The Appeal Panel considered authorities relevant to whether the Tribunal had power collaterally to review the validity of the occupation certificates, including Director of Housing v Sudi (2011) 33 VR 559; [2011] VSCA 266 and Jacobs v Onesteel Manufacturing Pty Ltd (2006) 93 SASR 568; [2006] SASC 32. It concluded:

Having concluded that the Tribunal had jurisdiction to consider whether the certificates relied upon by Dyldam authorised occupation of the whole of the building, the Appeal Panel answered that question in the negative. It found:

It is logical to deal first with Dyldam’s contention that the Tribunal had no authority to determine whether an interim occupation certificate was issued in breach of the EPA, or to grant relief to give effect to such a determination. By its grounds of appeal, Dyldam contends:

These grounds of appeal assume that the certificates relied upon were interim occupation certificates within the meaning of the EPA. It can be taken that Dyldam contends that the Tribunal also did not have jurisdiction to determine that question.

The starting point is the jurisdiction conferred on the Tribunal by the Home Building Act.

Section 48K of the Home Building Act relevantly provides:

The Tribunal does not have jurisdiction to determine a building claim that is brought outside the limitation period for the bringing of a claim (s 48K(7)), but does have jurisdiction in respect of a building claim brought within the limitation period (s 48K(1) and (2)). The first obligation of a court is to be satisfied that it has jurisdiction to decide the claim brought before it (M J Leeming “Authority to Decide: The Law of Jurisdiction in Australia” 2nd ed Federation Press pp 37ff). That is also the obligation of a tribunal. Because the Tribunal’s jurisdiction depends upon whether or not the claim has been brought within time, the Tribunal has jurisdiction to determine that question (Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213; 383 ALR 175 at [12]-[15], [72], [74]).

Section 48L of the Home Building Act provides:

The heading to s 48L accurately summarises the effect of the provision that the Tribunal is to be the forum chiefly responsible for resolving building claims. This tells against a construction of s 48K that would require a separate proceeding to be commenced in the Land and Environment Court to determine the validity of the certificates on which Dyldam relies.

The Land and Environment Court may have jurisdiction to consider the validity of an occupation certificate in a variety of circumstances, including under s 124 of the EPA Act when asked to make orders to remedy breaches of that Act (Cessnock City Council v Laila Investments Pty Ltd [2012] NSWLEC 206 at [9] (Pain J)). But there is nothing that would confer exclusive jurisdiction on the Land and Environment Court to determine the validity of an occupation certificate unless it be by implication from s 71 of the Land and Environment Court Act 1979 (NSW) (“the LEC Act”).

The Appeal Panel observed (at [96]) that:

Although this was common ground, it is not obviously correct. The former ss 123 and 124 of the EPA Act (now ss 9.45 and 9.46) confer jurisdiction on the Land and Environment Court to make orders to remedy or restrain a breach of the EPA Act. No question arises as between Dyldam and the respondent as to whether a breach of the EPA Act should be remedied or restrained.

Section 20 of the LEC Act provides:

Section 71 of the LEC Act provides:

Through s 20(2) of the LEC Act the Land and Environment Court would have jurisdiction to determine the validity of an occupation certificate, at least a final occupation certificate, and to do so to the exclusion of the Supreme Court (subject to the constraints of Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1).

It may be taken that pursuant to s 20(2)(b) of the LEC Act the Land and Environment Court would have jurisdiction as the Supreme Court would otherwise have had to “review ... the exercise of a function conferred or imposed by a planning or environmental law ...”, including determining the validity of the certificates purportedly given by DixGardner pursuant to the EPA Act. It is well settled that s 71 of the LEC Act does not preclude the Supreme Court from deciding issues that would fall within the jurisdiction of the Land and Environment Court under s 20 of the LEC Act if those issues arise before the Supreme Court collaterally in proceedings of a different kind, such as proceedings for damages or injunction for breach of a common law duty (Bathurst City Council v Saben (1985) 2 NSWLR 704 at 709; National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 583; Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102; [2008] NSWCA 278 at [40]-[47]).

A fortiori, s 71 of the LEC Act (which does not apply to the Tribunal) could not give jurisdiction to the Land and Environment Court, exclusive of the jurisdiction of the Tribunal to determine the issue as to the validity of the purported occupation certificates on which Dyldam relies before the Tribunal.

The fact that the Land and Environment Court does not have exclusive jurisdiction to determine the validity of those certificates does not of itself mean that the Tribunal has jurisdiction to do so. Dyldam characterised the Tribunal’s decision as involving a “collateral review” or “collateral challenge” to the validity of the certificates. It submitted that the authorities relied upon by the Appeal Panel with respect to collateral review or collateral challenge did not support the Appeal Panel’s conclusion. It relied in particular on Director of Housing v Sudi.

In my view, the issue as to the validity of the certificates was not collateral at all to the proceeding before the Tribunal. It was central to the Tribunal’s decision which the Tribunal was both obliged and authorised to make as to its jurisdiction to entertain the claim. As the authority of the Tribunal to decide the issue depends upon the proper construction of the Tribunal’s jurisdiction conferred by s 48 of the Home Building Act (Frugtniet v Attorney-General (NSW) (1997) 41 NSWLR 588 at 602), I find it impossible to understand how that legislation does not confer jurisdiction on the Tribunal to decide whether the effect of the documents relied upon by Dyldam was to authorise the occupation and use of the whole of the building. The facts of this case are, in that respect, quite different from the authorities on the jurisdiction of courts and tribunals to entertain a collateral challenge to the validity of administrative or legislative acts considered by the Appeal Panel and by the Victorian Court of Appeal in Director of Housing v Sudi.

In Jacobs v Onesteel Manufacturing Pty Ltd v WorkCover Corporation of SA Debelle J (at [14]) noted that an issue is not truly “collateral” if it is the central issue to be decided. The Appeal Panel described a collateral challenge as one where (at [99]):

What is meant by collateral challenge or collateral review will depend upon context. In the sense described by the Tribunal it can be accepted that the respondent makes a collateral challenge to the validity of the certificates. That does not deny the centrality of that challenge to the Tribunal’s decision. This informs the construction of s 48K conferring jurisdiction on the Tribunal. The challenge is not collateral in the sense described by McHugh J in Ousley v The Queen (1997) 192 CLR 69 at 98-99; [1997] HCA 49 as being merely an incident in the determination of other issues.

The centrality of the issue to the Tribunal’s jurisdiction distinguishes the present case from Director of Housing v Sudi. There, the Director of Housing brought proceedings in the Victorian Civil and Administrative Tribunal for possession of residential premises. The Tribunal dismissed the applications on the ground that the Director of Housing had breached the Director’s obligations under s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in seeking to evict the respondents from their premises. The Victorian Court of Appeal held that the Tribunal did not have jurisdiction to make the finding that the Director had breached the respondents’ human rights and to find that the Director’s applications for orders for possession were invalid. It is true that the Tribunal found that it had no jurisdiction to hear and determine the applications because of the breach it found of the Director’s obligations under the Charter of Human Rights and Responsibilities Act. In that sense, the finding of the Tribunal was central to its determination that it lacked jurisdiction to entertain the applications. But neither the Residential Tenancies Act 1997 (Vic) nor the Victorian Civil and Administrative Tribunal Act 1998 (Vic) expressly conditioned the Tribunal’s jurisdiction on the application being brought in conformity with the applicant’s obligations under the Charter of Human Rights and Responsibilities Act. By contrast in the present case, NCAT’s jurisdiction is expressly dependent upon whether the occupation certificates relied upon by Dyldam authorised the occupation and use of the whole of the building.

Had the relevant Victorian legislation provided in substance that the Tribunal could make an order for possession only if the applicant, in seeking such an order, complied with the applicant’s obligations under the Charter of Human Rights and Responsibilities Act in bringing the application, one may venture to think that the result would have been different.

In Director of Housing v Sudi, the issue undoubtedly involved a collateral review of the Director’s decision to bring the application for a possession order. Moreover, as Warren CJ observed, that decision bore “no brand of invalidity upon its forehead” (at [23]). This was a further ground of distinction and was relied upon by the Appeal Panel because, in the present case, the certificates relied upon by Dyldam which purportedly excluded conditions of the development consent bore the suggested mark of invalidity on their face, having regard to s 109H(2) of the EPA Act.

In Ousley v The Queen the High Court held that the County Court of Victoria had jurisdiction to decide a challenge to the validity of a search warrant issued as an administrative act by a Supreme Court judge where the challenge was based upon the face of the warrant and its asserted non-conformity with requirements of the Act authorising the issue of the warrant (at 79-80 (Toohey J), 87 (Gaudron J), 102, 104-105 (McHugh J), 126-127 (Gummow J) and 144, 148 (Kirby J)). The issue arose in the context as to whether or not evidence from listening devices inserted pursuant to the warrant was obtained lawfully.

In Attorney-General (Cth) v Breckler (1999) 197 CLR 83; [1999] HCA 28, in the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, their Honours said (at 108 [36]):

In Director of Housing v Sudi Warren CJ said (at [28]):

Whether the statements of the High Court in Ousley and Breckler are applicable to tribunals as well as courts will depend upon the legislation establishing the tribunal and conferring jurisdiction on it. Generalisations are dangerous. But in the case of NCAT in the exercise of the jurisdiction conferred on it under the Home Building Act, if the issue were properly characterised as one of merely collateral review of the administrative decision of DixGardner to issue the certificates, there is no reason that Ousley should not apply.

This, essentially, was the ground upon which the Appeal Panel decided that the Tribunal had jurisdiction to decide the issue. In so deciding, the Appeal Panel did not err.

In Director of Housing v Sudi, Warren CJ held that for VCAT to have a power to undertake collateral review of the validity of the Director’s proceeding to bring the application for possession, would be inconsistent with the stated purpose for the establishment of VCAT as its being a forum for speedy and inexpensive resolution of specific kinds of disputes (at [34]). Both Maxwell P and Weinberg JA elaborated on the reasons why that was so. Warren CJ acknowledged the risk that this would lead to fragmentation of proceedings by requiring the respondent to the application for possession to bring a separate proceeding in the Supreme Court to challenge the Director’s decision to bring the proceeding, but said that this was a necessary consequence of the setting up of a specialist forum of limited jurisdiction (at [37]-[39]). Under the Home Building Act NCAT is to be the forum chiefly responsible for resolving building claims and, as noted at [47] this tells against Dyldam’s submission that the issue as to the validity of the certificates on which it relies can only be determined in the Land and Environment Court.

Maxwell P and Weinberg JA agreed that the Tribunal did not have jurisdiction to consider the legal validity of the Director’s decision to make the application to the Tribunal. Maxwell P held (at [74]-[75]) that because the proceeding was conditioned not on the existence of a valid administrative act by a public official, but on the existence of a right of possession of land, there was no capacity for collateral review of the validity of the Director’s decision under the Charter of Rights and Freedoms.

This conclusion was reinforced by a consideration of the text and structure of the Residential Tenancies Act (at [76]-[78]).

Weinberg JA said that VCAT may have some powers to engage in collateral review, but the extent of those powers was confined by Ousley v The Queen to challenges brought on the basis of “something akin to ‘facial’ or ‘patent’ invalidity” (at [261]). The collateral review made by the Tribunal in Director of Housing v Sudi was not of that character.

In the present case, the Tribunal’s determination of the validity of the certificates as authorising occupation of the whole of the building was of that kind.

All of the cases on jurisdiction of a court or tribunal to engage in collateral review of the validity of administrative decision depend upon a close attention to the structure and text of the legislation in question.

It is clear that the Tribunal did have authority to decide whether it had jurisdiction, and therefore did have jurisdiction to determine whether the effect of the certificates relied upon by Dyldam was to authorise the occupation and use of the whole of the building (Home Building Act, s 3C(2)(a)). Director of Housing v Sudi does not provide to the contrary.

In Cessnock City Council v Laila Investments Pty Ltd Pain J of the Land and Environment Court held that an occupation certificate was invalid for failing to comply with s 109H(2) of the EPA Act. Her Honour said (at [9]):

Pain J did not specifically refer to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91]-[93]. However, her Honour’s reasoning applied in substance the reasoning of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky that the relevant question was whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. Her Honour considered that s 109H(2) states a mandatory requirement that an occupation certificate not be issued unless the requirements of the development consent have been complied with.

Cessnock City Council v Laila Investments Pty Ltd was decided before Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404; 206 LGERA 40 (“Ralan”).

Dyldam relied upon the decision of this Court in Ralan that concerned the effect of s 109F(1)(a) of the EPA Act and reg 145 of the EPA Regulation which regulated the issue of construction certificates.

Section 109F provided:

Dyldam submitted that s 109F(1) used the same emphatic and mandatory language as s 109H(2) that the certificate “must not be issued” unless the prescribed conditions were complied with.

In Ralan the council sought declarations that the design and construction of a building were inconsistent with the development consent and that construction certificates issued by private certifiers were void and of no effect. The council sought orders requiring Ralan to undertake extensive rectification works. The issue was summarised by Sackville AJA (with whose reasons McColl and Barrett JJA agreed) at [6] as follows:

In Ralan this Court was prepared to assume that the construction certificates were issued in contravention of reg 145(1) of the EPA Regulation and s 109F(1)(a) of the EPA Act. Section 109F(1)(a) is set out at [79] above.

Regulation 145(1) of the EPA Regulation relevantly provided:

Because of insufficient factual findings in the court below, this Court was not in a position to determine whether differences between the plans and specifications the subject of the development consent and the plans and specifications the subject of the construction certificate meant that the design and construction of the building as depicted in the plans and specifications the subject of the construction certificates were inconsistent with the development consent. On the assumption that there was inconsistency, this Court held that, notwithstanding the mandatory language of s 109F(1)(a) (“a construction certificate must not be issued”), breach of the provision did not render the construction certificate invalid. That analysis required close consideration of the language of the relevant provisions and the scope and object of the whole statute (Project Blue Sky at [93]) having regard to the principle in Project Blue Sky at [91]:

One provision applicable to the issue before this Court in Ralan that is inapplicable to the construction of the provisions concerning the issue of occupation certificates was s 109F(1A). It is set out at [79] above.

Sackville AJA said:

Another distinguishing feature is that s 109H(2) requiring that an occupation certificate not be issued unless preconditions to its issue specified in the development consent etcetera have been met, is an additional requirement to s 109H(3)(d) and (5)(d) that the requirements of the Regulation be complied with before the certificate is issued.

On the other hand, a number of the features of the legislative provisions considered by this Court in Ralan are also applicable to the construction of s 109H. These include that Parliament has not said that an occupation certificate issued in breach of s 109H is invalid. Section 109H(2) can also arguably be seen as no more than a direction to the persons authorised to issue an occupation certificate, breach of which could lead to disciplinary sanctions under the former Building Professionals Act 2005 (NSW) or criminal sanctions under the former s 125 of the EPA Act. A finding that an occupation certificate is void for non-compliance with s 109H(2) would potentially expose occupiers of a building to criminal liability under s 109M. Further, although the breach of s 109H(2) was apparent on the face of the occupation certificates in question in the present appeal, that would not always be so.

If the effect of the certificates relied upon by Dyldam turned only on the question whether a certificate issued in breach of s 109H(2) rendered them invalid, I would regard the issue as being finely balanced.

But there is a more fundamental problem with the certificates. An occupation certificate could only authorise the occupation or use of the whole of the building within the meaning of s 3C(2) of the Home Building Act if it were either a final occupation certificate or an interim occupation certificate (Home Building Act s 3C(5) and the EPA Act ss 109C(1)(c) and 109H(1)).

The certificates relied upon by Dyldam were not final occupation certificates. That was made express on the face of the certificates. They purported to be interim occupation certificates. But an interim occupation certificate could only be issued in respect of a partially completed building, or for the commencement of a new use of part of a building resulting from the change of building use for an existing building (EPA Act s 109H(1)(a)). The building was completed, not partially completed. There was no change of building use.

Mr Dix, on behalf of DixGardner, was empowered to issue interim and final occupation certificates if he were of the view that the criteria provided for by the legislative scheme had been satisfied. However, he was not empowered to decide whether what he issued was in fact an interim or a final occupational certificate. That question was an objective one that depended upon whether the certificate satisfied the definition in s 109H(1)(a) or (b). The certificates were not interim occupation certificates, even though they so described themselves.

Irrespective of the effect of the breach of s 109H(2), the certificates did not authorise the use and occupation of the whole of the building.

For these reasons the Appeal Panel was correct to dismiss the appeal from Senior Member Goldstein.

I propose the following orders:

EMMETT AJA: The principal question in these proceedings is the construction of ss 109C and 109H of the Environmental Planning and Assessment Act 1979 (NSW) (the Planning Act). [1] The question arises in the context of the proceedings in the Civil and Administrative Tribunal of New South Wales (the Tribunal) against Dyldam Developments Pty Ltd (Dyldam) and a subsequent decision of the Appeal Panel. Dyldam contends that the proceedings are barred by the operation of s 18E of the Home Building Act 1989 (NSW) (the Building Act). Section 18E relevantly provides that proceedings for breach of a statutory warranty must be commenced within seven years from the completion of the relevant works. Under s 3C(2)(a) of the Building Act, the completion of residential building work occurs on the date of issue of an occupation certificate that authorises the occupation and use of the whole of the building. An occupation certificate is defined as “an occupation certificate under the [Planning Act]”.

Section 4 of the Planning Act relevantly provided that in the Planning Act, except in so far as the context or subject matter otherwise indicates or requires, “occupation certificate” means a certificate referred to in s 109C(1)(c). Section 109C(1)(c) relevantly provided that “an occupation certificate” may be issued for the purposes of Pt 4A of the Planning Act, being a certificate that authorises the occupation and use of a new building. Section 109H imposed restrictions on the issue of occupation certificates. Section 109H(1) provided that there are two kinds of occupation certificates being:

Section 109H contained several prohibitions on the issuing of an occupation certificate. There were sanctions for contravening the prohibitions in s 109H. Relevantly, s 109H(2) provides that an occupation certificate must not be issued unless any preconditions to the issue of the certificate that are specified in a development consent have been met.

On 23 June 2004, Holroyd City Council (the Council) granted development consent to Dyldam in respect of a property situated in Bangor Street, Guildford. The development consent relevantly provided that certain conditions were to be complied with “prior to the issue of an interim/final occupation certificate”. On 5 September 2011, a private certifying authority (the Authority) issued an interim occupation certificate in relation to the development. The interim occupation certificate excluded certain of the conditions in the development consent. On 9 September 2011, the Authority issued an amended interim occupation certificate, which expressly excluded some only of the conditions specified in the first interim occupation certificate.

On 12 October 2011, the Authority issued a final occupation certificate which did not exclude any of the development conditions. Proceedings were commenced within seven years of the final occupation certificate, but not within seven years of the issue of either the first or second interim certificates.

The Tribunal determined that each of those purported interim occupation certificates was, in effect, a nullity because of the contravention of s 109H(2) of the Planning Act. The Tribunal concluded, therefore, that the proceedings before it were commenced within the period of seven years after the issue of the final occupation certificate by the Authority. The question is whether a purported interim occupation certificate issued in contravention of s 109H(2) was “an occupation certificate under” the Planning Act.

It is significant that s 109H does not strike down a certificate issued in contravention of s 109H. On the other hand, a penalty is imposed under the Planning Act for contravening s 109H. The penalty is imposed on the authority. That is to say, s 109H(2) appears to be what Ulpian characterised as a lex minus quam perfecta. [2]

Section 3C of the Building Act applies to residential building work comprising the construction of a new building in a strata scheme where the issue of an occupation certificate is required to authorise commencement of the use or occupation of the building. Under s 3C(2), the completion of residential building work to which s 3C applies occurs relevantly, on the date of issue of an occupation certificate that authorises the occupation and use of the whole of the building . Under s 109C(1)(c) of the Planning Act, an occupation certificate authorises either the occupation and use of the new building or a change of building use for an existing building. Under s 109C(2), an occupation certificate may be an interim certificate or a final certificate and may be issued for the whole or any part of a building.

Under s 109H(1)(a), an interim occupation certificate authorises a person to commence occupation or use of a partially completed new building or to commence a new use of part of a building resulting from a change of building use for an existing building. Under s 109H(1)(b), a final occupation certificate authorises a person to commence occupation or use of a new building or to commence a new use of a building resulting from a change of building use for an existing building.

Clause 155 of the Environmental Planning and Assessment Regulation 2000 (NSW) (the Regulation) provides that an occupation certificate must contain, relevantly, the following:

Section 109M of the Planning Act relevantly provided that a person must not commence occupation or use of the whole or any part of a new building unless an occupation certificate has been issued in relation to the building or part. However, the section did not apply to the occupation or use of a new building at any time after the expiration of 12 months after the date on which the building was first occupied or used.

Section 125(1) of the Planning Act relevantly provided that, where any matter or thing is by or under the Planning Act forbidden to be done and that matter or thing is done, a person offending against that direction or prohibition is guilty of an offence against the Act. Under s 126, a person guilty of an offence against the Planning Act is, for every such offence, to be liable to the penalty expressly imposed and if no penalty is so imposed to a penalty not exceeding 10,000 penalty points and to a further daily penalty not exceeding 1,000 penalty points.

Clearly enough, the part quoted above is misconceived. Under s 109C(2) and s 109H, an interim occupation certificate is applicable to authorise commencement of occupation or use of a partially completed new building. A final occupation certificate authorises a person to commence occupation or use of a new building.

In so far as the occupation certificates issued by the Authority refer to “whole” of “building works” but purported to be “interim” certificates, they do not satisfy s 109H(1). It was common ground that the building work was completed by 5 September 2011.

I have had the advantage of reading in draft form the reasons of White JA. I agree with his Honour, for the reasons proposed by his Honour, that the certificates did not authorise the use and occupation of the whole of the building. I agree with the orders proposed by his Honour.

SIMPSON AJA: I agree with White JA.