The New South Wales Court of Appeal’s decision in Cameron v Woollahra Municipal Council [2024] NSWCA 216 tackles the often thorny issues surrounding construction certificates, jurisdictional error, and legal unreasonableness in planning law.

Below, we explore how this matter made its way to the NSW Court of Appeal, the key legal issues considered, and the lessons to take forward.

The Path to the NSW Court of Appeal

This dispute began with a development application approved by Woollahra Municipal Council in 2021. The application proposed the demolition of an existing dwelling and construction of a three-storey house in Bellevue Hill. A subsequent modification application in April 2022 sought to add a cellar level to the project. However, the Council’s Local Planning Panel rejected this component, imposing a condition which expressly prohibited excavation of the area where the cellar was proposed.

Despite this, a construction certificate was issued in August 2022 that allowed excavation for the installation of a crane base, stairs, and a lift shaft in that location. The Council successfully challenged this in the Land and Environment Court, arguing that the certificate was inconsistent with the development consent. The certifier’s decision was found to involve jurisdictional error, and the certificate was declared partially invalid. The property owners then appealed the matter to the NSW Court of Appeal.

Key Issues Considered by the NSW Court of Appeal

Issue 1: Extension of Time

Under the Uniform Civil Procedure Rules 2005 proceedings for judicial review must generally be commenced within three months. The Council commenced its case three months late but successfully argued for an extension of time in the Land and Environment Court. The appellants challenged this on appeal.

The Court of Appeal upheld the extension, highlighting several factors:

1. The Council acted promptly after identifying the inconsistency.
2. There was no evidence of prejudice to the appellants.
3. The public interest in ensuring compliance with planning laws outweighed the delay.

This decision reaffirms that courts will carefully balance procedural timelines against the merits of a case and the broader public interest.

Issue 2: Consistency with Development Consent

The crux of the matter was whether the construction certificate was consistent with the modified development consent. The condition imposed by the Council was unambiguous: the cellar level, including associated excavation, was not permitted.

The Court found the construction certificate to be inconsistent, noting:

1. The approved plans clearly marked the cellar as “deleted” and prohibited excavation in that area.
2. The construction certificate plans allowed works that directly contravened this prohibition, including excavation for a crane base and associated structures.

The Court reinforced that consistency must be determined by evaluating the entirety of the development consent, rather than cherry-picking conditions or plans.

Issue 3: Legal Unreasonableness and Jurisdictional Error

The appellants argued that any inconsistency did not automatically render the certifier’s decision legally unreasonable. However, the Court disagreed, emphasising that:

1. The certifier’s role includes ensuring that construction certificates comply with all aspects of the development consent.
2. Issuing a certificate that effectively negated a clear prohibition in a condition imposed by the Council was legally unreasonable.

This reinforces the high threshold certifiers must meet when issuing construction certificates, particularly where specific conditions are in place.

Consequences of Jurisdictional Error

The appellants contended that the jurisdictional error should not result in invalidity of the construction certificate. However, the Court reiterated that decisions made outside the bounds of legal authority are void to the extent of the error.

In this case, the invalidity was appropriately limited to the portion of the certificate permitting excavation below the specified level.

Key takeaways

This case serves as a reminder that even minor deviations from development consents can have significant consequences, particularly where legal errors are involved.

Some key takeaways include:

1. Clarity in development consent conditions – explicit conditions, such as the condition imposed by the Council in this case, set clear boundaries for construction. Developers and certifiers must ensure that construction certificates align with these conditions to avoid disputes.
2. Certifier responsibilities – certifiers must act within the limits of their statutory authority and exercise diligence when assessing consistency. Ignoring clear prohibitions can lead to findings of legal unreasonableness.
3. Timely action by local councils – Councils must act swiftly to address inconsistencies. While courts may grant extensions for good reason, delays can weaken enforcement efforts.
4. Implications of jurisdictional error – a construction certificate issued in breach of statutory requirements can be invalidated, at least in part. Certifiers and developers should not assume that inconsistencies will be overlooked or deemed minor.

Further reading

You can read the full judgment below.

Click here to read an article where Alyce Kliese has considered the distinction between this judgment and the Ralan decision.