Deconstructing Construction Certificates (and other updates)

Deconstructing Construction Certificates (and other updates)

Readers may recall a similarly titled article written by Alex Kelly in June 2016 (you can find that article here). Since that time the Environmental Planning and Assessment Act 1979 ('EPA Act') has been updated and there have been developments in the Court’s approach to interpreting construction certificates. Below is a summary of the key developments.

Principal Certifying Authority

Section 6.6 states that development consent (‘DC’) does not authorise building work until a principal certifying authority (‘PCA’) has been appointed. Under the old provisions of the EPA Act, section 81 stated that the erection of a building pursuant to a DC must not be commenced until a PCA for the building work had been appointed.

The difference, although minor, is potentially far reaching. Under the new provisions, a person who commences work without the appointment of a PCA is liable to be prosecuted for carrying out unauthorised works, and all subsequent work carried out pursuant to the consent is unlawful. Hypothetically, work carried out in breach of s 6.6 would not be considered building work for the purpose of a lapsing development consent.

Owners Building Manual

Section 6.27 introduces a requirement that a certifier provide building owners with an owner's building manual prior to issuing a an occupation certificate. The manual is to incorporate the information which was previously provided in the fire safety schedule.

New Form of Complying Development Certificate

Certifiers now have the power to issue a complying development certificate (‘CDC’) subject to a deferred commencement condition under section 4.28(9A). This enables a certifier to require additional information and plans after the certificate is issued, but before the certificate begins to operate.

New Power

In Ralan v Burwood City Council (No 3) [2014] NSWCA 404 (Ralan) the Court found that if there was an inconsistency between the conditions of consent and the terms of a construction certificate, the construction certificate will prevail over the consent.

In response to the decision in Ralan, the NSW Government introduced section 4.31 as part of the recent amendments to the EPA Act. It gives the Court the power to declare a complying development certificate (‘CDC’) invalid if the proceedings are commenced within 3 months of the certificate being issued and the Court determines that the development is of a kind that can not be authorised by a CDC.

Previously Council and the Court did not have the power to overrule a CDC even where the works should have required development consent. The power allows the Court to consider whether the certificate should have been issued in the first place.

In the recent case of Burrell v Mullin [2018] NSWLEC 165, the applicants were successful in seeking injunctive relief against the respondents who had obtained a CDC for works which were arguably not complying development.

Justice Pepper found:

“The fact remains that the present use of the premises is as a florist, and not as a café, arguably requiring consent under the LEP, and therefore, in the absence of such consent the current use is not a lawful use. Furthermore, while it is correct to say that the CDC constitutes development consent, this submission begs the central question of whether it is complying development."

The Court put itself in the position of the certifier and doubted whether the development was correctly categorised as complying development. On that basis, the Court found that there was a serious question to be tried regarding the validity of the CDC and an injunction was awarded on that basis.