Posted on May 7, 2015 by
A Missed Opportunity to Deal with Validity of Construction Certificates
Former NSW Treasury Secretary Michael Lambert’s first publication in the independent review of the Builders Professional Act 2005 has failed to address the issue of the validity of construction certificates that are issued unlawfully.
Released at the start of May 2015, the Independent Review of the Building Professionals Act 2005 – Discussion Paper (Discussion Paper) follows an initial review period involving consultation with key stakeholder groups and personnel from the Builders Professional Board and Department of Planning and Environment. Public exhibition of a draft report is expected to occur in mid-2015, with a final report to the Secretary of the Department of Planning expected to be finalised later in the year.
The Discussion Paper raises a number of issues of interest to local government, private certifiers and the development industry including:
- the need for a statutory obligation on a private certifier to report non-compliances with planning legislation to a consent authority;
- a return to a system where development consents are ‘concept approvals’ with detailed design only occurring at subsequent stages; and
- introduction of a new development completion certificate certifying that all planning conditions have been met.
The Discussion Paper does propose a change to the requirements in the Environmental Planning & Assessment Regulation 2000 that a construction certificate and occupation certificate cannot be issued unless the plans or the new building, respectively, are ‘not inconsistent’ with the relevant development consent. The Discussion Paper recommends the test be replaced with a positive obligation that the plans and building be consistent with the development consent.
However, the Discussion Paper does not address the current position whereby a construction certificate which fails the ‘not inconsistent’ test remains valid (see our earlier blogs Construction certificates – inconsistency with DA held not to effect validity and Inconsistency between Construction Certificates and Development Consents).
In Burwood Council v Ralan Burwood Pty Ltd (No 3)  NSWCA 404, the Court of Appeal held that the only recourse in those circumstances is disciplinary action against the certifier.
This is unsatisfactory as it fails to deal with the resulting built form. This represents a corruption risk as, particularly with large scale developments, the resulting benefit in terms of development profit may well exceed any fines imposed on the certifier.
The Discussion Paper does, appropriately, consider increased sanctions against certifiers.
However, the failure of the Discussion Paper to address the issue of the validity of unlawfully issued certificates represents a missed opportunity to put the issue on the reform agenda.