Posted on March 18, 2020 by Stuart Simington 1

Modification of construction certificate held not invalid

The flaws in the private certification regime have surfaced again. The Land and Environment Court has held in Omaya Investments Pty Limited v Dean Street Holdings Pty Limited (No 5) [2020] NSWLEC 9 that the modification of a construction certificate was not invalid even though:

• the application  for the modification of the CC did not comply with the express requirements of the Environmental Planning and Assessment Regulation 2000 (Regulations)  in various respects;
• notice of the approval of the CC was not given in writing either to the applicant or the Council.

Facts

On 5 March 2019,  the certifier had a meeting with the developer’s representative.

The developer provided the certifier with a set of plans for the whole building including certain revised structural plans and certificate relating to the shoring and piling of the basement.

The bulk excavation, shoring and piling had been the subject of an initial construction certificate (CC).

The developer representative and the certifier had a conversation to the following effect:

Developer:   I’ve brought a complete set of structural plans for the site, which includes revised shoring and piling plans and a structural certificate.

Certifier:   Leave them with me, I will have a look at them and call you.

On 6 March 2019,  the certifier spoke with the developer and said words to the effect “I have reviewed the plans and I have no objection”.

At some stage after the conversation on a date unknown but apparently between 8 March 2019 and 9 August 2019, the shoring and piling plans were stamped by the certifier:

Dix Gardiner Group Pty Ltd

Certificate Number 16/0475-02

Date 08/03/2018

Construction Certificate Approved

The developer’s only notification of the approval was the conversation on 6 March 2019. The developer did not receive written notice of the ‘approval’ of the modification.

The certifier did not notify the Council.

These proceedings were brought by a neighbour alleging, amongst other things, that the modified CC was invalid.

Findings

The issues and the evidence in the matter was complex and the Court was required to deal with a number of related issues in dispute. These are not discussed in this post.

However, Justice Duggan did make the following findings about the validity of the modification of the CC:

• On the evidence, the developer made a request to the certifier to modify the piling and shoring plans the subject of the CC.
• The certifier received the plans for that purpose.
• The application did not need not be on any specific form unless the certifier had so required. In this case there was no such requirement by the certifier.
• On the evidence, the plans provided to the certifier contained both illustrations and written specifications that set out the terms of what the developer was seeking (by way of revising the plans in the CC) and accordingly the application was made in writing.
• The fact that the application did not contain all of the information required to be in the application and was not accompanied by all for the prescribed documentation under the Regulations (in Schedule 1 Part 3),  did not result in a breach the Regulations.
• This was because, to the extent that a modification application for a CC  is required to comply with the provisions of the Regulations, there is no requirement for re-lodgement of information/documents already in the possession of the certifier.
• It was sufficient that the missing documents or information  required to permit a determination of the modification application were available to the certifier having previously been submitted in or with the application for the original CC.
• There is no requirement that a certifier provide an applicant for a construction certificate, or the modification of same, notice of the determination of the application. Notice need only be given to the Council or the consent authority.

The Court accepted that the requirements of the Regulations for the issuing of CCs were breached in so far as:

• the certifier did not produce an amended CC document which complied with the Regulations;
• the mere stamp placed on the approved modified plans was insufficient to meet the totality of the requirements of the Regulations  in regard to the issuing of a modified CC;
• the Council was not notified by the certifier of the modification of the CC, and no record of inspections was provided.

In relation to the last point, the Court  accepted that the intent of the notification of the Council is to enable the Council, and through it the public, to be made aware of the issuing of CCs, the requirements of those certificates and that appropriate inspections are being undertaken. The Court accepted that these objectives would not be met.

Nevertheless, the Court held that it was bound by previous Court of Appeal authority in relation to the issuing of CCs (Burwood Council v Ralan Burwood Pty Limited (No 3) (2014) 206 LGERA 40). In that case, the Court held that breaches of the Regulations for issuing of CCs does  not result in the invalidity of the construction certificate.

Rather, in Ralan, the Court held that a failure to comply is to be addressed by disciplinary action against the certifier under the provisions of the Building Professionals Act . You can read our post about that decision here.

The decision in Omaya shows that the flaws in the private certification scheme has not been remedied by the recent amendments to the EPA Act in s6.32 brought about by the Ralan decision:

Without limiting the powers of the Court under section 9.46(1), the Court may by order under that section declare that a certificate under this Part (other than an occupation certificate) is invalid if—

(a)  proceedings for the order are brought within 3 months after the issue of the certificate, and

(b)  the plans and specifications or standards of building work or subdivision work specified in the certificate are not consistent with the development consent for the building work or subdivision work.

Section 6.32 was introduced to address the specific issue which had arisen in the Ralan case where the CC was said to have been  inconsistent with the development consent. However, the Omaya decision shows that there are a range of other requirements of the Regulations that remain open to abuse which may defeat the intent of the provisions and result in clear detriment to the public.  In this case, there was no way for the public even to know what modification to the CC may have been certified.