Lessons identified from this case
- A CDC application for work under the General Housing Code should include enough information for certifiers to be satisfied that the work will result in only one dwelling on the site.
- Certifiers have the authority to ask applicants for more information and should defer their determination until it is provided. Certifiers should document such requests as part of good recordkeeping.
Setting the scene: relevant legislative provisions
Environmental Planning and Assessment (EP&A) Act 1979
- Section 85A(3) provides that to determine an application for complying development, certifiers must determine if the proposed development is complying development and complies with the relevant development standards.
Environmental Planning and Assessment Regulation 2000
- Clause 3 defines a dwelling as a 'room or suite of rooms occupied or used, or so constructed to be capable of being occupied or used, as a separate domicile'.
- Clause 127 authorises a council or certifier to request additional information from a CDC applicant that is 'essential' to consider the application properly.
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
- Clause 1.17 provides that complying development is that which is specified in a complying development code, and meets specified standards and the general requirements for complying development.
- Clause 3.8(a) of the General Housing Code provides that development specified for that code may only be carried out on a lot that, at completion of the development, will have only one dwelling house.
A certifier issued a CDC for proposed additions to an existing dwelling. The application was assessed under the General Housing Code of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP).
The proposed addition was in the rear yard and a little over 200m2 in floor area. It included a family room, meals room, rumpus, piano room, kitchen, bathroom, powder room, three bedrooms, loft, verandah and a covered car space.
Proposal with two dwellings on the site was approved
Several features of the CDC application should have alerted the certifier that the proposed development was an additional dwelling and so did not comply with the Codes SEPP:
- The application didn't detail any proposed work on the existing house, such as what would happen to the existing kitchen after the new one was built.
- The addition had all the rooms and features of a self-contained dwelling, plus its own covered car space with street access.
- The addition was connected to the existing house by a pitched roof with a laundry underneath.
- The laundry could only be accessed from outside, meaning there was no internal access between the existing and new structures.
- The BASIX certificate described the project type as an 'attached dwelling house' and the home warranty insurance certificate described it as a 'new single dwelling'.
The certifier failed to conclude that the proposal would breach the Codes SEPP. He reasoned that the outcome of the work was one dwelling on the property, since the kitchen in the existing house was demolished after the new kitchen was built, and that in his view one kitchen equalled one dwelling.
However, the CDC application didn't propose demolishing the existing kitchen. Moreover, the number of kitchens is not relevant to the definition of a dwelling under planning legislation. As it was submitted, the CDC application proposed work that would result in two dwellings.
Certifier did not correctly assess compliance with Codes SEPP
The EP&A Act and the Codes SEPP require certifiers to assess whether a development application shows intent to comply.
The CDC application should have alerted the certifier to the possibility of the work resulting in two dwellings. To clarify the intent of the work to comply, he should have asked for more detail (e.g. on internal access between the structures, and whether any work was planned for the existing house).
Certifiers may be found to have engaged in unsatisfactory professional conduct if they assess a CDC incorrectly. This may include an assessment made on the basis of insufficient detail.
Findings of the Board and Tribunal
The Board made a finding of unsatisfactory professional conduct and imposed an aggregated penalty on several complaints against the certifier. The aggregated penalty included a reprimand, $10,000 fine and restrictions on practice until certain education courses were completed.
When assessing the CDC application, the certifier should have insisted on more information to be satisfied the completed development would result in only one dwelling. The application, as made, didn't enable him to reach this conclusion. He chose not to use his authority under the EP&A Regulation to request more information.