Catchwords:

APPEAL – from findings of fact – challenge to trial judge’s finding as to nature of information required by local council – appellant bore burden of demonstrating that finding was wrong – burden not discharged

LEASES AND TENANCIES – default and termination – commercial lease – express right to terminate if occupation certificate not obtained by contractual deadline – implied limitation preventing party from relying on own breach or default – construction of lease not challenged on appeal – whether lessee entitled to terminate

CONTRACTS – performance – discharge by performance – lessee required to provide all information required for Council expeditiously to process development application – Council requested “BCA report for a fit out” – whether request required clause-by-clause assessment of proposed fit-out and existing building – purpose of BCA compliance report – absence of express statutory requirement immaterial – obligation to seek clarification if request ambiguous – breach established

CONTRACTS – causation – material contribution –substantial chance – whether outstanding fire safety order caused requirement for BCA compliance report or material delay – no causal connection established – other requests for information concerned minor matters capable of prompt and concurrent resolution – statutory period allowed by Council for response did not qualify contractual obligation to act expeditiously

CONTRACTS – causation – counterfactual program of construction works – expert program aggressive but achievable – alleged concessions overstated – sufficient allowance for contingencies – substantial chance occupation certificate would have been obtained by contractual deadline

ENVIRONMENT AND PLANNING – application concerning fit-out and change of use of premises in existing building – assessment under s 64(2) of Environmental Planning and Assessment Regulation 2021 (NSW) – purpose and required content of BCA compliance report