Reliance on “third party” certificates: is the Land & Environment Court more permissive than the ADT?
By Justin Cotton, Partner, Construction and Practitioner Advocacy, Lovegrove Smith & Cotton, Construction and Commercial Lawyers
Recently I have explored a Land & Environment Court case concerning a large mixed use development and queried whether, on some fronts, the Court has taken a more liberal approach on private certification than would be found in the Administrative Decisions Tribunal (ADT).
In this last article in the series, I will focus on the PCA’s reference to third party certification when assessing construction certificates and interim occupation certificates, to see whether the Court’s attitude marks a departure from the previous parsimonious approach at the ADT in some ‘misconduct’ cases.
The NSW case concerned is Burwood Council v Ralan Burwood Pty Ltd  NSWLEC 173 (16 October 2013), where the development under scrutiny included 268 residential apartments in 3 towers, with shops and commercial suites. The Council challenged 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’.
In the final analysis the Court refused the relief the Council was seeking in regard to changes to façade appearance between the construction plans and the Development Consent (“the DA”) and declined to order rectification to bring the buildings into line with the DA. So does this finding in Burwood truly represent a more ‘liberal’ approach than the ADT when it comes to reliance by the PCA on certificates from other practitioners?
Firstly, it is necessary to recall that this project related primarily to residential flat development. Pursuant to clause 50(1A) of the EPA Regulation, a development application that concerns residential flat development (made on or after 1 December 2003) must be accompanied by a design verification from a qualified designer.
That qualified designer must verify certain things in that statement, including that he/she designed or directed the design of the residential flat development and that the design quality principles set in out in Part 2 of SEPP 65 are achieved for that development (clause 50(1A)).
This process of design verification by way of a statement, is then mirrored down the chain including at construction certificate and the later occupation certificate stage.
Clause 143A of the Regulation applies to residential flat development where the DA was required to be accompanied by a design verification and it is said at subclause (2):
“A certifying authority must not issue a construction certificate for residential flat development unless the certifying authority has received a design verification from a qualified designer, being a statement in which the qualified designer verifies that the plans and specifications achieve or improve the design quality of the development for which development consent was granted, having regard to the design quality principles set out in Part 2 of [SEPP 65]…”
Further to this, at the occupation certificate stage for such development, clause 154A of the Regulation specifies that the PCA must not issue an occupation certificate unless that PCA has received a design verification from a qualified designer – by way of a statement that the design quality as described above has been achieved.
With reference back to Part 2 of SEPP 65, that provision lays out a series of 10 “design quality principles” covering such matters as context, scale, built form, density, resource-energy-water efficiency, aesthetics, safety & security and other factors.
In the Burwood case, the architect responsible for the design decided on changes that should be made to the DA specifications and put those changes before the PCA before the construction certificates were approved.
The PCA then decided that if the changes were implemented the development would be ‘not inconsistent with’ the DA. The necessary design verification statement was supplied by the architect (who was appropriately qualified) and each construction certification approved then took effect as part of the Development Consent.
The Court saw no problem with this process concerning the design verification statement and was not prepared to find that the changes, which related mainly to finishes, took the development into the realm of being inconsistent with the DA. Also, on the basis of section 109P of the EP&A Act, the later PCA when issuing interim occupation certificates and indeed other parties in the earlier construction process were entitled to rely on the construction certificates as being validly issued.
There was some discussion by the Court that Part 4A certificates that were questionable should not always be assumed to be void and of no effect, and that there was a disciplinary regime in place to sanction certifiers that committed an error or engaged in some irregularity – rather than declaring the entire process void at great inconvenience.
In the end, the Burwood case is more specific to the matter of design verification statements for residential flat developments. This particular statement is a form of certification that is central to such development as a separate requirement, and does not assist a great deal on the question of third party certifications generally. Furthermore, even if there has been design verification, the certifier must still satisfy him/herself that clause 145 of the Regulation on the test of ‘not inconsistent with’ has been satisfied.
Indeed even in the more conservative ADT decisions there is some acceptance that, particularly when issuing occupation certificates, the PCA is not expected to be a ‘jack of all trades’, and that it is acceptable to rely on a combination of visual inspection and third party certificates from specialists, eg in regard to fire alarm installation by installing contractors.
Obviously, it would be preferable if a formal Part 4A certificate was obtained in the form of a compliance certificate that satisfies the Regulation, because the PCA would then get the benefit of being able to rely on that compliance certificate under section 109P of the Act.
That said, it is often not possible to obtain a formal compliance certificate, and even the ADT decisions accept that other certifications can be relied on to an extent. The caveat is that there must be a context where the PCA can be seen to have considered the certificate carefully and ensured for example that the pertinent and accurate standards had been referenced in the certificate, particularly if the factual context shows that something has gone wrong on site.
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