How Water Tight is a Construction Certificate and Can you Go Behind it?
By Justin Cotton, Partner, Construction and Practitioner Advocacy, Lovegrove Smith & Cotton, Construction and Commercial Lawyers
In recent weeks an article of mine looked at the ramifications of a recent Land & Environment Court decision that apparently takes a more liberal approach than other determinations (particularly at the Administrative Decisions Tribunal) when it comes to the issue of construction certificates and consistency or otherwise with the Development Consent.
As a sequel to that, this week I explore other findings in the same case decision of import to accredited certifiers and Part 4A certificates generally. For one thing, do defective actions or omissions of the PCA necessarily mean a construction certificate is rendered void, invalid and of no effect? For another, does the final decision in the case take a more liberal approach than the ADT when it comes to reliance by the PCA on certificates from other practitioners when issuing approvals?
On the first question of validity or otherwise of certificates, one example that arises occasionally is whether and to what extent an accredited certifier (PCA) can be punished if the Applicant commences works without telling the PCA and before a construction certificate is approved – and if the construction certificate is approved without the PCA realising works have started.
The relevant case is the Land & Environment Court decision in Burwood Council v Ralan Burwood Pty Ltd  NSWLEC 173 (16 October 2013). Part of this case (“Burwood”) involved Council challenging the validity of 6 construction certificates issued by the first PCA and 2 later interim occupation certificates issued by another PCA, by way of declarations sought that the certificates were ‘void and of no effect’. This was therefore concerned partly with the validity of construction certificates that had been approved.
There is a restriction on the issue of construction certificates found in section 109F of the Environmental Planning & Assessment Act 1979 (“the EP&A Act”), with the relevant parts of that provision reading:
“(1) A construction certificate must not be issued with respect to the plans and specifications for any building work or subdivision work unless:
- the requirements of the regulations referred to in section 81A (5) have been complied with, and….
(1A) A construction certificate has no effect if it is issued after the building work or subdivision work to which it relates is physically commenced on the land to which the development consent relates.” (Emphasis added)
Further, section 109E(3)(a) of the EP&A Act states that a principal certifying authority (“PCA”) for building work to be conducted is required to be satisfied that a construction certificate or complying development certificate has been issued for such of the building work that requires development consent, before the work commences.
Based on the plain and ordinary meaning of the words in section 109F of the EP&A Act, a construction certificate will have no effect if it issued after the works to which it relates have physically commenced on site. By that it is argued that the construction certificate will be invalid, void and of no effect.
The ability for accredited certifiers to issue certifications such as construction certificates, subdivision certificates, compliance certificates and occupation certificates (interim or final), and the regulation of that ability, is found in Part 4A of the EP&A Act.
At paragraph 292 of the Burwood decision it is stated: “As can be seen from the terms of Part 4A, a finding that a certificate is invalid can sterilise a project completely, eg if a CC fails, an OC based on it fails as well.”
In Burwood, the Court drew a distinction between some sections in Part 4A of the EP&A Act that require a certifier to be ‘satisfied’ about something versus other sections ruling that a certificate “must not be issued…unless” certain circumstances exist. In other words, some requirements in the Act may be conditions of ‘validity’, while conversely the satisfaction of the PCA might not be a condition that goes to validity. For example, section 109E regulates the certifier whilst other sections (say ss109H and 109J) regulate the certificate.
Depending on which is applicable, a deficiency in a certificate may or may not render the entire certificate invalid and of no effect. To evaluate which is applicable it is relevant to consider whether a legislative intent or purpose can be discerned to invalidate any act that fails to comply with the condition.
At paragraph 308 of the Burwood decision it is stated:
“The challenge to any Part 4A certificate must confront the provisions in s109P, which creates an entitlement to assume validity, such that one does not “go behind” the certificate which, in the case of a CC, must predate the commencement of work if it is to have effect (ss 109E and 109F, amended to overturn the effect of Marvan Properties v Randwick City Council  NSWLEC 9).”
If a construction certificate is void, invalid and of no effect because works have started prematurely, this must at least be relevant to mitigation in favour a lighter penalty (if the certifier is investigated). Where is the harm to the community if the certificate is of no effect from the moment it is has been issued?
The second question of interest is whether or not the Burwood finding takes a more liberal approach than the ADT when it comes to reliance by the PCA on certificates from other practitioners when issuing approvals.
Based on the facts of the case, the designer determined that changes should be made to the specifications that were part of the Development Consent (“DC”). It was then necessary for the PCA for the development (a mixed use development consisting of 268 residential apartments in 3 towers, with shops and commercial suites) to certify that if the changes proceeded the development would still satisfy the DC as being “not inconsistent with it”.
Next week I intend to analyse the result in the Decision, the reasons for it in regard to design verification, and whether this amounts to a more liberal approach than recent ADT decisions.
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