Welcome to the fifth issue in a rolling series of Alerts offering planning law perspectives on issues relevant to the building and construction industry.
Our previous Alerts have highlighted the importance of building certifiers ensuring that all relevant local government planning scheme requirements have been observed and necessary permits have been obtained.
Where an earlier planning permit has been obtained, a building certifier considering any subsequent building approval needs to ascertain whether the earlier approval includes conditions relevant to building certification, such as a condition requiring development to be “generally in accordance with” approved drawings.
Building certifiers need to ensure that plans they are considering are consistent with any earlier approved drawings and satisfy any relevant conditions.
It has been suggested that the phrase “generally in accordance with” contains an inherent acknowledgement of an intention to make some allowance for deviations1. In deciding whether a proposal under consideration is generally in accordance with an earlier approval, “the significance of any particular deviation will depend upon the criteria by which it is judged.”2 The criteria may include the relevant planning scheme.
For instance, in Pine Mountain Court Pty Ltd & Ors v Valente  QPELR 265, the Applicants argued that working drawings approved by the private certifier were not “generally in accordance with” those approved by the Court. It was observed in this case that while there may have been some minor changes to the building’s length and width, they were of no real consequence in a fair appreciation of the building bulk. Further, many of the changes involved architectural detailing of features more loosely identified in earlier drawings. Ultimately, the Court was satisfied that the proposal as approved by the private certifier was generally in accordance with the earlier approval.
The Pine Mountain case acknowledges that working drawings will, by their nature, contain more detail and possibly refinement of schematic drawings. However, any deviations need to be consistent with the contemplated building bulk and style.
We recommend that building certifiers have regard to the following principles when considering whether building plans/works are “generally in accordance” with any earlier plans:
- When considering if a building is “generally in accordance with” an earlier approval, the court will consider the facts, degree and impression, with a focus on substance not form.3
- The whole of the new proposal must be compared with the whole of the approved plan4; it is the combination of the variations that is considered, not the individual variations.
- The significance of the variations in the overall context of the development.
- The town planning consequences, if any, of the variations5, which will likely involve looking at any criteria and thresholds relevant to the variations contained in the planning scheme.
- Whether the earlier plans can be described as being a preliminary schematic design or plans which conveyed the proposal as a matter of concept or impression, rather than in its detailed particulars. If so, the preliminary nature of an earlier approval may give rise to an inference that there would be further amendments6.
- Despite the simplicity of an original plan, if it is evident that important planning elements are incorporated into the original approval (for instance with respect to size, scale and location on the site), those issues will be relevant to any alterations.
In applying the considerations outlined above, building certifiers need to interrogate any earlier plans and approvals to consider whether as a matter of impression, degree and scale, the new plans and works are “generally in accordance with” what was approved.
If a building certifier has doubts about conclusions reached in this regard, the local government may be willing to provide its views. Further, it may be prudent to obtain legal advice, particularly in light of the penalties and consequences that flow if a subsequent building permit approves building work that is not generally in accordance with any earlier plans. However, it is important to bear in mind that a local government opinion or legal opinion can only provide comfort and does not necessarily prevent challenge by a third party7.
In the next Alert, we look at the importance of building certifiers keeping detailed documentation and checking compliance throughout the construction phase.