Quin v O'Malley t/as Yellamo Building Certifiers and Another [2005] NSWLEC 503

Quin v O'Malley t/as Yellamo Building Certifiers and Another [2005] NSWLEC 503

The claim against the first respondent failed because the certificate itself evidenced the certifier's satisfaction, and it was open for the certifier to be satisfied that the construction certificate plans were not inconsistent with the development consent. The approved plans showed a retaining wall along the boundary, and the certifier was entitled to treat below-ground support works such as fill and an agricultural drain as necessary ancillary works for structural integrity. Their depiction on the applicant's side of the wall did not make the certifier's satisfaction manifestly unreasonable in the Wednesbury sense.

Jurisdiction
Australia
Judgment Date
16 September 2005
Procedural Posture
Proceedings Seeking Declarations and Consequential Orders Concerning the Validity of a Construction Certificate and Final Occupation Certificate for Development Works / Judgment Determining the Claim Against the First Respondent; Further Conduct of Proceedings Between the Applicant and Second Respondent to Be Listed for Mention
Outcome
The claim against the first respondent fails.
Legal Topics
['construction Certificate' 'development Consent' 'jurisdictional Fact' 'wednesbury Unreasonableness' 'retaining Wall and Ancillary Works' 'final Occupation Certificate']
['planning and Environment Law' 'administrative Law' 'building and Construction Certification'] ['construction Certificate' 'development Consent' 'jurisdictional Fact' 'wednesbury Unreasonableness' 'retaining Wall and Ancillary Works' 'final Occupation Certificate']

Case Brief

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Procedural Posture

Proceedings Seeking Declarations and Consequential Orders Concerning the Validity of a Construction Certificate and Final Occupation Certificate for Development Works / Judgment Determining the Claim Against the First Respondent; Further Conduct of Proceedings Between the Applicant and Second Respondent to Be Listed for Mention

Legal Issues

  1. 1 ['Whether the construction certificate issued by the first respondent was invalid to the extent that it referred to works pertaining to the retaining wall.' 'Whether it was open to the first respondent to be satisfied that the construction certificate plans were not inconsistent with the development consent under regulation 145(1).' "Whether the certifier's satisfaction was manifestly unreasonable in the Wednesbury sense because the construction certificate plans showed fill and an agricultural drain on the applicant's land." 'Whether the granular fill and agricultural drain were part of the retaining wall or ancillary works.']

Ratio Decidendi

The claim against the first respondent failed because the certificate itself evidenced the certifier's satisfaction, and it was open for the certifier to be satisfied that the construction certificate plans were not inconsistent with the development consent. The approved plans showed a retaining wall along the boundary, and the certifier was entitled to treat below-ground support works such as fill and an agricultural drain as necessary ancillary works for structural integrity. Their depiction on the applicant's side of the wall did not make the certifier's satisfaction manifestly unreasonable in the Wednesbury sense.

Court Disposition

The claim against the first respondent fails.

Orders

  • ['The parties are allowed 14 days to bring in appropriate orders relating to the proceedings against the first respondent.' 'The matter is listed for mention at 9.30am on 7 October 2005 to enable directions for the further conduct of the proceedings between the applicant and the second respondent.']