Certifier exceeding discretionary powers contributes to unauthorised development

Tuesday, 1 November, 2016
A certifier failed to advise that a proposal to vary an approved building design needed a modified development consent and construction certificate. He was penalised by the Board and appealed to the Tribunal, which upheld the Board's decision. The owner of the development also incurred delay and expense stemming from the certifier's advice.

Lessons identified from this case

  • Pay particular attention to proposals to vary a building's external design or configuration. Most likely a modified development consent and construction certificate will be needed.
  • Be aware of the limits of your discretionary powers. Even a very minor variation may require a modified development consent and construction certificate if it relates to a condition of consent that is highly specific or descriptive.
  • Don't just accept an architect's (or other relevant professional's) advice that a proposed variation will satisfy a condition of consent. Scrutinise the advice, the proposal and conditions of consent, and check with the council if unsure.

Setting the scene: relevant legislative provisions

Environmental Planning and Assessment Act 1979

  • Section 96 allows for a development consent to be modified by the consent authority in certain circumstances, upon application by a person entitled to act on the consent.
  • Section 109E(3)(d) provides that a principal certifying authority (PCA) cannot issue an occupation certificate unless satisfied that the work has been inspected at each required critical stage, by the PCA or another certifying authority.

Case details

A certifier was appointed as PCA for a new dwelling house (part two/ part three-storey), swimming pool and retaining wall.

Specific condition of consent gave no scope for variation

The development application showed the northern wall as having an inaccessible ledge on the first floor which was considered to impact on the neighbour's scenic waterway views.

Development consent was issued by the Land and Environment Court (LEC), which imposed the following very specific condition:

'The inaccessible "ledge" located off the first floor master bedroom shall be deleted in its entirety together with the roof above it and the louvres on its western end.'

As required, the endorsed construction certificate plans deleted the ledge. The northern wall was also 'stepped' in a manner that preserved the neighbour's views.

Certifier approved variation to construction certificate plans

The architect subsequently wrote to the certifier seeking approval to vary the design by replacing the stepped wall with a single straight wall set at an angle. This meant part of the master bedroom's floor, wall and roof extended into the area of the former ledge.

The architect submitted that the encroachment wasn't extensive and the variation exceeded the requirement of the condition of consent since it didn't obstruct the neighbour's views.

The certifier agreed to the proposal and advised that a section 96 modification to the consent wasn't needed. When asked if a modified construction certificate was needed, his reply was no, unless there were further changes.

However, the condition of consent clearly required complete deletion of the ledge and the roof above it. The condition's specificity ruled out alternative means of compliance, and precluded any conclusion that the ledge was deleted if a room was partly or entirely built in its place.

Certifiers have some discretion in deciding whether a design variation requires a modified development consent or construction certificate, but this authority is limited.

In this case, the certifier should have rejected the architect's reasoning and recommended the council's advice be sought, particularly since the consent was issued by the LEC and included a specific condition about that part of the building.

If the certifier felt the variation was not inconsistent with the development consent, then at the very least a modified construction certificate should have been required before the work was built.

Certifier's inaction leads to unauthorised development

When the revised design was built, the neighbour contacted the certifier, asking how it satisfied the LEC's condition of consent. The certifier's response was to forward the architect's letter explaining how, in the architect's view, the variation satisfied the condition. The certifier didn't visit the site or write personally to the complainant.

The neighbour then complained to the local council, and submitted a formal complaint to the Board about the certifier's conduct.

By the time the neighbour complained to the Board, the certifier knew the work had proceeded beyond the first floor slab, necessitating at least five critical stage inspections [cl.162A(4)(b-f), EP&A Regulation].

However, the Board found that the certifier hadn't completed these inspections, made formal arrangements for another certifier to do so, nor received (or sought) inspection records from other certifiers.

The council subsequently issued a notice of intention and then an order upon the owner in regard to the work not being in accordance with the consent. The owner incurred further expense and delay in having to take action in the LEC to appeal the order and submit a section 96 application.  

Findings of the Board and Tribunal

The Board made a finding of unsatisfactory professional conduct and imposed a reprimand and a $5,000 fine, in accordance with the disciplinary penalty guidelines.

The certifier appealed to the NSW Civil and Administrative Tribunal, which found in the Board's favour and affirmed the amount of the fine.

This case, specifically the Board's application of the disciplinary penalty guidelines to determine the fine, was later cited in other Tribunal decisions.

In conclusion

Under the code of conduct, certifiers have a duty of care in relation to their advice and actions as a certifier.

Where an approved design is changed, certifiers usually have to deal with a variation that is already built. In this case, the change hadn't yet been built, giving the certifier more control over the situation. However, he still made an error of judgement in approving the proposed variation and advising a modified development consent and construction certificate weren't needed.

Certifiers must also take prompt, appropriate action in relation to complaints made by the public. When alerted by the neighbour that the work wasn't in accordance with the plans, the certifier merely sent the complainant a letter from the architect, rather than a personal response. The certifier took no other action until prompted by the Board.

Certifiers should review the disciplinary penalty guidelines to fully appreciate the scale of penalties that may be imposed for particular conduct. The guidelines categorise offences according to severity and are used to help determine appropriate penalties.

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