What has happened?

There have been two recent decisions of the NSW Court of Appeal about whether a developer is entitled to rely upon certificates issued by private certifiers and the extent to which those certificates can be legally challenged.

The first case of Burwood v Ralan1 considered whether the plans approved in a construction certificate could override plans approved by Burwood Council in a development consent. The NSW Court of Appeal found that:

  • plans contained in a construction certificate form part of a development consent, and
  • if there is any inconsistency between the construction certificate plans and the development consent plans, the construction certificate plans prevail.

The High Court recently refused to grant special leave to Burwood Council to appeal the NSW Court of Appeal’s decision.

The second case of Trives v Hornsby Council2 considered whether complying development certificates were valid where the proposed development was alleged not to be complying development. The Land and Environment Court held that the complying development certificates were invalid.

However, on appeal, the NSW Court of Appeal found that the Land and Environment Court made an error of law because the question of whether or not development is complying is not a jurisdictional fact which can be reviewed by the Court.

The NSW Court of Appeal decision also limits the scope for potential challenges to complying development certificates on the ground that the development is not in fact complying development. The matter has been sent back to the Land and Environment Court for final determination. We are following the outcome of this decision with interest.

This update considers the decision and implications of Burwood v Ralan.

Who does this affect?

The decision in Burwood v Ralan is relevant to all developers, councils and private certifiers.

Background

Burwood v Ralan concerned a major residential and commercial development in Burwood, NSW.

Council argued that the building’s façade as constructed was inconsistent with the plans approved by Council in a development consent. The developer did not dispute this proposition, but sought to rely upon the plans approved by the private certifier as part of the construction certificates.

Council contended that the plans approved in the construction certificates involved such substantial departures from the development consent that:

  • the construction certificates were invalid, and
  • the development had been carried out other than in accordance with the development consent, in breach of the Environmental Planning and Assessment Act 1979 (EP&A Act).

Decision

The NSW Court of Appeal found that:

  • even if the construction certificates were inconsistent with the plans and specifications contained in the development consent, they were not void,
  • section 80(12) of the EP&A Act has the effect of deeming the plans and specifications contained in the construction certificates to be part of the development consent, and
  • if there is an inconsistency between the plans and specifications contained in the construction certificates and the plans and specifications comprising the development consent, the construction certificates prevail.

The Court of Appeal observed that “The legislation accommodates the possibility that an accredited certifier will issue a construction certificate in breach of clause 145(1) and s109F(1) [of the EP&A Act] by according paramountcy to the plans and specifications referred to in the construction certificate”.

The High Court refused Council’s application for special leave to appeal the Court of Appeal’s decision, with the result that the Court of Appeal’s decision stands.

Implications

Certifiers will obviously be aware of their statutory and professional responsibilities. Before construction certificates can be issued, certifiers are required to comply with their duties under the EP&A Act. However, any failure to do so will not prevent a developer from relying on a construction certificate.

In an appropriate case, certifiers risk committing an offence under section 125 of the EP&A Act for failing to comply with their duties in issuing construction certificates. Certifiers could also be subject to disciplinary action by the Building Professionals Board under the Building Professionals Act 2005.