Approved construction certificate drawings that are inconsistent with the relevant development consent drawing do not render the construction certificate invalid, according to the New South Wales Court of Appeal.1

The Court of Appeal held that because a construction certificate and any drawings and specifications issued in relation to it are taken to form part of the relevant development consent:2

  1. where the construction certificate drawings and specifications are inconsistent with the development consent drawings,  the former prevail; and
  2. if an applicant carries out building works in accordance with such a construction certificate, the applicant has not contravened the prohibition against starting construction work without first having obtained a construction certificate.3

The Court also held that the power of councils to issue orders under section 121B of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) overcomes any concerns about health and safety risks in the issuing of construction certificates that are inconsistent with the relevant development consent.

The Court’s reasoning is as follows:

  1. The requirement that a construction certificate must not be issued unless the design and construction of the building is “not inconsistent” with the development consent4, is directed at the certifier and not the person who has the benefit of the development consent.
  2. If Parliament had intended that such a construction certificate be held invalid, it would have provided for such explicitly by inserting a provision in the EP&A Act similar to section 109F(1A)5 specifying the consequences of a contravention of the prohibition.
  3. The prohibition relates to the requirements of the regulations that include important matters such as those contained within clause 145(1) but also comparatively trivial requirements. The Court held that “[i]t is difficult to conclude that the legislative purpose is served by treating a construction certificate as invalid if it is issued otherwise than in compliance with the regulations, regardless of the nature or seriousness of the contravention.”
  4. The validity of a construction certificate may depend on differing opinions as to whether the drawings and specifications approved by the development consent are different to those issued for the construction certificate.
  5. A finding of invalidity would lead to inconvenient consequences particularly for an applicant acting in good faith in reliance on such a construction certificate,  including:
    1. the applicant could be in breach of the prohibition against commencing  building works without a construction certificate; and
    2. the applicant may not be able to obtain an occupation certificate after the building work has been completed.

Implications of the decision

Reaction to this decision will be very mixed:

  1. developers will see this as a common sense decision enabling development being carried out in accordance with the construction certificate to continue unimpeded;
  2. councils, members of the community and owners of properties adjacent to building sites, who are sceptical of the private certification process, are likely to see this as an opportunity for developers to knowingly make changes to approved developments, without having to lodge a section 96 modification application for the changes. Such changes could reverse, for instance, hard won concessions through the development application process; and
  3. for certifiers, the risk remains that they could be in breach of the EP&A Act and risk prosecution and disciplinary proceedings if they issue a construction certificate that is inconsistent with the relevant development consent.

We see an urgent need for legislative intervention to deal with the many issues that the decision raises.