The Question of Inconsistency with the Development Consent and the Inconsistent Answers Coming out of the ADT and the Land & Environment Court
By Justin Cotton, Partner, Construction and Practitioner Advocacy, Lovegrove Smith & Cotton, Construction and Commercial Lawyers
The more things change the more they stay the same. One constant over the years is that what you get on questions concerning Construction Certificates and whether they satisfy clause 145 of the EP&A Regulations, can be different depending on whether you are at the ADT (in a misconduct inquiry) or at the Land & Environment Court.
In the recent case decision of Burwood Council v Ralan Burwood Pty Ltd  NSWLEC 173 (“the Ralan decision”) at the Land & Environment Court, after much litigation involving multiple parties and a 76 page decision, the outcome could be summarised as:
- The case centered on Council’s objections to the façade finish including the deletion of louvres fins and addition of translucent panels to a mixed use development of 268 dwellings in 3 towers,
shops and commercial suites over 4 levels of basement carparking;
- This resulted in a change in the colour of some glazing and the decision to abandon the proposed louvres that were contained in the Development Consent (DA). The changes in final
presentation were unacceptable to the Council and their Architect expert Ms Morrish;
- The Judge at the Court noted that the changes to which objection were taken were ‘elements of finish’ and went on to state: “As I have already noted, reasonable minds differ on such merits
issues, and I certainly express no view on them.”
- The Judge went on to say that what might be unacceptable to some, including regulators and expert commentators, as in this case “may not represent a breach of the certifier’s duty”;
- Consequently, it was found by the Court that the ‘fundamentals of the project’ remained in place after certification, and the Court refused the application by the Council to have the 6
Construction Certificates issued by the PCA declared invalid.
On the disparity between the Construction Certificate (CC) and the DA plans/design, it was noted that clause 145 of the Regulation currently states that the PCA must not issue a CC unless (cl 145(1)(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.” (emphasis added).
After the Court of Appeal’s decision in Lesnewski v Mosman Municipal Council  NSWCA 99, clause 145 of the Regulation was amended to remove its subjective element. This made it more difficult for a certifier to effectively argue that their PCA ‘discretion’ should be the ‘kingmaker’ on whether or not there was consistency.
Prior to this time, clause 145 had originally stated that a PCA must not issue a CC unless satisfied of the various matters in the clause, including the question of whether the CC was not inconsistent with the DA. As you can see the original form of clause 145 provides more scope for a PCA’s discretion.
It is noted that decisions on clause 145 consistency between the DA and the CC have tended to be more conservative at the Administrative Decisions Tribunal (ADT).
While the ADT forum is more involved in misconduct rather than the civil/property disputations at the Land & Environment Court, nevertheless there will be unnecessary confusion amongst the certification industry if there is no real attempt made to ensure harmonisation on these decisions between the two jurisdictions.
Perhaps the subjective nature of assessments in regard to finishes and aesthetics that are involved in some of these questions, as alluded to by the Judge in this case, means that there will often be a subjective element in clause 145.
In addition, the Court held that the Developer, the Architect and the Builder were entitled to rely on the Construction Certificates issued by the PCA, rather than having the spectre of having all future actions, works and the later Interim Occupation Certificates also declared a nullity. This would certainly follow if the Construction Certificates were declared void and of no effect.
Based on section 109P of the EP&A Act these parties were entitled to rely on the contents of the Part 4A Certificate (ie the Construction Certificates) and assume that all things that are stated in the certificate as existing or having been done do exist or have been done. The Judge found that these parties (Developer, Architect and Builder) were entitled to rely on the Construction Certificates and there was no evidence that they had strayed beyond them.
Further to this, the Judge considered that if on the facts there had been a real problem with the CCs being inconsistent with the DA, the misconduct procedures available under the accreditation system could be brought to bear. It would not necessarily mean that the Part 4A certificate need be struck down so that later acts or certifications would also be rendered nugatory.
Given that the Judge had found the CCs were not inconsistent with the DA, it was not necessary to consider the competing arguments about the PCA’s discretion under clause 145. However, the Judge did say that if it had been necessary to decide this, the Council’s arguments about discretion were relatively weak and therefore the Court would not have granted relief. (The Council was seeking remedial works to the façade that would have cost millions of dollars, such orders were eventually rejected and an order for costs was made against the Council in favour of the various respondents).
Despite the Council’s arguments to the contrary, the Court found that the PCA had received a ‘design verification’ from a qualified Architect as required by clauses 50 and 143A of the Regulation (ie the special requirements for residential flat developments based on SEPP 65). The other requirement was for the CC to be not inconsistent with the DA and the Court decided that this second criterion was also met, meaning that here the CCs could have been issued and then subsequently relied upon.
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