What happens when a construction certificate is inconsistent with the development consent?
The Cameron v Woollahra Municipal Council [2024] NSWCA 216 (Cameron) ruling sets the legal landscape for certifiers and clarifies for developers and principal contractors alike whether a construction certificate is invalid if it differs substantially from a development consent.
Background
Woollahra Municipal Council (Council) had initially granted a consent to demolish an existing dwelling and build a new three-story home. Cameron and Green (Owners) later sought modifications to the consent including a new cellar. The Council approved most modifications but explicitly refused the cellar.
The construction certificate issued by a private certifier however included provisions for excavation in the area where the cellar would have been. The Council challenged the certificate arguing it was inconsistent with the modified consent.
The Land and Environment Court agreed with the Council, finding the certifier’s decision to allow excavation for a prohibited cellar level was legally unreasonable. The Owners appealed the decision to the NSW Court of Appeal.
Issue
The issue before the Court of Appeal was if a construction certificate differs substantially from a development consent, is the decision to issue that certificate legally unreasonable and invalid rendering the whole certificate invalid?
Held
The Court of Appeal held that while inconsistency alone does not prove legal unreasonableness, in this case, the certifier’s allowance for excavation without a necessary basis rendered the certificate partially invalid.
The Court of Appeal dismissed the Owners’ appeal, reinforcing that construction certificates must closely align with approved development consents to maintain validity.
Ralan distinguished
The Court distinguished this case from that of an earlier decision, Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 (Ralan), which centred on a development where the plans and specifications in a construction certificate were inconsistent with the original development consent. In that case, Burwood Council sought to invalidate the construction certificate as a whole issued by a private certifier. The Court ruled that a construction certificate issued in breach of planning laws does not automatically lead to invalidity unless explicitly stated by the legislation.
One of the key points in Ralan was the acknowledgment of Clause 145(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Act), which forbade certifying authorities from issuing certificates that were “inconsistent with” the development consent. However, the Court took the position that the mere fact of inconsistency between the certificate and the consent did not automatically void the certificate. The ruling established that inconsistency alone was insufficient to invalidate a certificate unless the legislation explicitly mandated that outcome. This principle has since been followed in subsequent cases.
Cameron examined whether the certifier’s actions amounted to an error so serious that it invalidated the construction certificate. This required a detailed assessment of what aspect of the construction certificate contradicted the development consent in order to determine whether a part of the construction certificate was invalid.
Unlike Ralan which intended to put a finality to decisions and certificates as a whole, the decision in Cameron emphasized that certifiers must act within legal bounds and that when they do not, it may be appropriate to set the certifier’s decision to issue the certificate aside, in part.
Key takeaways
This judgment underscores the enduring relevance of Ralan in guiding the interpretation of construction certificates within the statutory framework of the EPA Act. The ruling serves as a reminder that while Ralan limits the automatic invalidation of certificates, findings of legal unreasonableness in the exercise of certifiers’ functions can still result in significant legal consequences, including partial invalidation, subject to the extent of the inconsistency and legal unreasonableness.
If you would like to discuss this article with us, please contact Brett Vincent, Partner, or Rebecca Salib, Associate on (02) 9261 5900.