Posted on November 16, 2017 by Stuart Simington and
The Primacy of a Construction Certificate
The NSW Court of Appeal has reversed a decision of the Land and Environment Court which limited the extent to which a construction certificate could override the terms of a development consent.
In Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement)  NSWCA 263, the Court of Appeal effectively held that, irrespective of the conditions of a development consent, where there is an inconsistency between those conditions and the approved construction certificate plans and specifications, the construction certificate plans and specifications will override any inconsistent conditions.
Decision at first instance
We previously blogged about the Land and Environment Court decision in Pasminco Cockle Creek Smelter Pty Limited (subject to Deed of Company Arrangement) v Lake Macquarie City Council  NSWLEC 143 here.
That case concerned a condition of consent which the Land and Environment Court had found required the construction of a main road pipe. The approved construction certificate plans, however, failed to show that pipe.
It was argued in the LEC that the omission of the pipe from the construction certificate plans meant that the pipe did not form part of the consent by virtue of s 80(12) of the Environmental Planning & Assessment Act 1979 (EPA Act).
That section provides:
‘If a consent authority or an accredited certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 96).’
In interpreting the section, Robson J in the LEC held that:
‘s 80(12) applies only insofar as there is an inconsistency between the plans and specifications that form part of a construction certificate and those in a consent. If there is such an inconsistency, the plans and specifications in the construction certificate will prevail. This does not mean that a developer is exonerated from complying with a condition simply because the construction certificate does not make reference to it. Rather, the principle involves supplementing minor changes in plans contained within a construction certificate that are generally consistent with the relevant consent.’
Court of Appeal
The Court of Appeal overturned this aspect of the decision.
Relying on its previous decision in Burwood Council v Ralan Burwood Pty Ltd (No 3)  NSWCA 404, the Court emphasised that s 80(12) has the effect that, to the extent that there is an inconsistency between the construction certificate plans and specifications and the plans and specifications approved in the development consent, those certified by the construction certificate will prevail.
The application of this principal is not confined to minor changes to the approved plans. The question of the degree of inconsistency is irrelevant for the purposes of s 80(12).
In this context, McColl JA emphasised that the construction certificate plans are presumed to be valid, and are deemed to form part of the relevant consent, ‘overriding any inconsistent terms therein‘.
The decision ensures that, irrespective of the terms of a consent, the construction certificate plans will take precedence over the development consent where there is an inconsistency.
The outcome is undeniably unsatisfactory. By permitting a certifier to effectively modify a development consent, the decision erodes the central tenet of the planning law that a development application is to be determined by a responsible consent authority taking into account all the matters referred to in s 79C of the EPA Act.
Recognising this, the pending amendments to the EPA Act will allow a construction certificate to be declared invalid in proceedings brought within 3 months of the construction certificate being issued. This may not change the authority of decisions like Bunderra, but it will provide a means for consent authorities to limit the consequences of the decision by challenging a construction certificate that differs from the relevant development consent.
Until that time, however, certifiers should not consider themselves free to effectively modify a development consent by certifying plans and specifications which are inconsistent with the consent. A certifier remains bound by cl 145 of the Environmental Planning and Assessment Regulation 2000 not to issue a construction certificate unless the design and construction of the building are not inconsistent with the relevant development consent. Any departure from this could expose a certifier to disciplinary action under the Building Professionals Act 2005.