Posted on October 17, 2013 by Megan Hawley

Inconsistency between Construction Certificates and Development Consents

Developers, certifiers and councils regularly question to what extent the plans the subject of a construction certificate can vary from the plans approved by a development consent. The Land & Environment Court yesterday held valid a number of construction certificates issued in respect of a mixed use development in Burwood which Burwood Council considered to be significantly different from what it approved.

Clause 145 of the Environmental Planning & Assessment Regulation 2000 (EPA Reg) provides that a certifying authority must not issue a construction certificate for building work unless:

…(a)  the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent…

In Burwood Council v Ralan Burwood Pty Ltd [2013] NSWLEC 173, the Land & Environment Court considered challenges to 6 construction certificates issued in respect of a major project involving 3 towers at 1-3 Railway Parade, Burwood.

The Council argued that the buildings constructed were inconsistent with the development consent in a number of respects. The two major changes of concern to Council were:

• the deletion of external louvres which Council alleged were a ‘major and important design feature’; and
• changes to the finishes of the building, including the windows and frames, and their colours.

These changes affected all fenestration in the development. The changes also included the deletion of three protrusions; removal of street planter boxes (pending a landscape plan); elimination of the planned “upper storey cantilever in favour of street level columns”; and changes to carparking, drainage etc; fire stairs; kerb line; retail area configuration and replacement by a substation; the vehicular entrance; lobby areas; amenities and heritage atrium; spaces for commercial/rainwater reuse purposes; and the void area, fire hydrant tanks, and pump room.

An urban design expert gave evidence for Council that ‘as a final result the appearance of  the building in no way even resembles  the original intent of the approval as depicted in the accompanying elevation drawings…the entire character of the building appearance has been altered, compounded by the additional aid of a totally different range of colour choices and their application in detail.‘

Despite that, Sheahan J found that the construction certificates were validly issued.

His Honour noted that under s109P of the Environmental Planning & Assessment Act 1979 (EPA Act),  a person exercising functions under the EPA Act is entitled to assume a construction certificate is validly issued. He also noted that declaring a construction certificate invalid would sterilise a project, as it would then result in the occupation certificate being invalid, and prevent the occupation of the project, and the issue of a strata certificate.

However, after reviewing the decided case law in respect of Part 4A certificates, His Honour appeared to accept that a finding of ‘inconsistency’ with the development consent would lead to invalidity of the certificates, as it did in the earlier cases of Kogarah City Council v Armstrong Alliance Pty Ltd (No 2) [2013] NSWLEC 32 and Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5) [2013] NSWLEC 68.

However, His Honour then said that ‘what matters to the court is that all the fundamentals of the project, as defined in the DC ([14] and [38] above), remained in place after certification’.

The reference to paragraphs [14] and [38] is to earlier paragraphs of His Honour’s judgment, where he set out the key features of the development but in no more detail than to describe it as three towers on a retail commercial podium including 268 residential units, 62 retail and commercial suites  and associated underground parking.

His Honour found that the fundamentals of this development remained after the issue of the construction certificates, and therefore the construction certificates were valid. He held that the ‘changes made by the CCs…do not make it inconsistent with the approval…’

The judgment could be read as authority for the proposition that changes can be made to a development at certification stage without modifying the consent, unless there is a change to a fundamental element of a development (such as number of storeys, number of units etc). Any construction certificate issued on that basis will be valid.

In my view, this conclusion is not available on a proper reading of clause 145 of the EPA Reg. The clause does not refer to inconsistencies in the fundamentals of a development, it is expressed to cover any inconsistency between the plans and specifications accompanying the construction certificate and the development consent. Surely a change to the appearance of a building, as shown in the plans and further informed by the specifications, must be something which results in an inconsistency and which should properly be the subject of an application to modify the development consent.

It can be expected that developers and certifiers will consider that this judgment gives them considerable scope to modify the detail of their projects through the certification process and without recourse to Council.