Burwood Council v Ralan in the High Court
Our readers may be aware of the Court of Appeal’s (CoA) decision in Burwood Council v Ralan Burwood Pty Ltd and Ors  NSWCA 404, where the CoA essentially found that there is no recourse as against a developer if a private certifier certifies plans which are inconsistent with those approved by a development consent.
What you may not have been aware of was that the Council sought special leave to appeal that decision to the High Court (Burwood Council v Ralan Burwood Pty Ltd and Ors  HCATrans 157) On 19 June 2015, the High Court Justice Gaegler and Justice Keane sat and heard the Council’s special leave application.
The questions put to the Court were that if construction certificates are issued in breach of the EPAA and the corresponding Regulations:
a) do they prevail over the development consent?; and,
b) does the breach invalidate the certificates? Counsel for the Council argued that a) they could not and b) must.
In support Counsel enforced the fact that the relevant provisions of the legislation (s109F of the EPAA, and Part 8 Div 2 of the Regulations) say that a certifier “must not” issue, such that it could not have been the legislative intention that a construction certificate would prevail over a development consent.
Justice Keane said: One appreciates the force of what you are saying because it does seem odd to suggest that the construction certificate could trump the decision of the consenting authority made after a consultative process but these considerations were all addressed.
Whilst the High Court did say that it was an appropriate vehicle to determine the questions raised by the Council, and, “Notwithstanding the arguments carefully advanced on behalf of the [Council]…” special leave was ultimately refused. Per Justice Gaegler :
The decision of the Court of Appeal turned on the application of established principles of statutory construction to a complex statutory scheme unique to New South Wales…we are not persuaded that the decision is attended by sufficient doubt to warrant the grant of special leave to appeal.
The position remains that the CoA’s decision is the law until such time as NSWs “complex statutory scheme” is amended.
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