Construction certificates and Roads Act Consents

What are some of the features of construction certificates and consents under section 138 of the Roads Act 1993?

I’ve been receiving a lot of questions recently about construction certificates and consents under section 138 of the Roads Act 1993 (Roads Act Consents).

This article aims to address the most commonly-asked questions when it comes to construction certificates and Roads Act Consents. In doing so, it highlights some key differences between them.


Construction certificates

What is a construction certificate and when would I need one?

Section 109C of the Environmental Planning and Assessment Act 1979 (EPA Act) says that a construction certificate certifies that work completed in accordance with specified plans and specifications will comply with legislative requirements.

Section 81A of the EPA Act says that a construction certificate is required for building work or subdivision work that has been approved under a development consent. Often, consent authorities will place a condition on a development consent as a reminder to obtain a construction certificate. A construction certificate is one of the things that must be obtained before beginning building work or subdivision work.

Click here for more information on “building work” and “subdivision work”.

Who can issue a construction certificate?

Section 109D of the EPA Act says that construction certificates can be issued by a consent authority, the local council, or an accredited certifier.

Click here for more information about certifying authorities.

How do I make an application for a construction certificate?

Clause 139 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) sets out application requirements, including the following:

  • if the certifying authority requires that the application is in a certain form, then the certifying authority must supply an application form, and the application for the construction certificate must be in that form;
  • an application for a construction certificate must include:
    • the name and address of the applicant;
    • a description of the building work or subdivision work to be carried out;
    • the address, and formal title details of the the land on which the building work or subdivision work is to be carried out;
    • for building work – the class of the building under the Building Code of Australia;
    • if development consent has been granted – the registered number and date of issue of the relevant development consent;
    • the estimated cost of the development; and
    • all required documents (documents that are required with a construction certificate application are listed in Schedule 1, Part 3 of the Environmental Planning and Assessment Regulations 2000 – click here to access the relevant section of the regulations).

An application for a construction certificate must be delivered by hand, sent by post or transmitted electronically to the certifying authority. Clause 139 of the Regulation specifically says that an application for a construction certificate cannot be faxed to the certifying authority.

What does a construction certificate look like?

There are requirements in legislation that specify what should be included in:

  • the determination of the application for a construction certificate; and
  • the construction certificate itself.

When a construction certificate is approved, both the determination and the construction certificate will be part of the same “bundle” that is provided to the applicant. This may not be the case where a construction certificate has been refused (in that instance, only a determination would be issued).

Clause 142 of the Regulation requires that a determination of an application for a construction certificate must be in writing, and must contain:

  • the date on which the application was determined;
  • whether the construction certificate application has been approved or refused;
  • if the construction certificate has been refused:
    • the reasons for the refusal; and
    • if the certifying authority is a consent authority, details about the applicant’s right to appeal against the refusal,
  • if a construction certificate has been issued subject to conditions relating to the Building Code of Australia or fire safety standards:
    • the reasons for the conditions; and
    • if the certifying authority is a consent authority, details about the applicant’s right to appeal against any conditions.

Clause 147 of the Regulation requires that the construction certificate itself must contain:

  • the identity of the certifying authority that issued it, including, in a case where the certifying authority is an accredited body corporate, the identity of the person who issued the certificate;
  • if the certifying authority is an accredited certifier, the accreditation number of the certifying authority, including, in a case where the certifying authority is an accredited body corporate, the accreditation number of the person who issued the certificate;
  • if the certifying authority is an accredited certifier who is an individual, the signature of that person;
  • if a person issued the certificate on behalf of the certifying authority, the signature of that person;
  • the registered number and date of issue of any relevant development consent;
  • the date of the construction certificate;
  • a statement to the effect that work completed in accordance with documentation accompanying the application for the certificate (including any modifications that are verified by the certifying authority as shown) will comply with the requirements of the Regulation;
  • if the construction certificate is for building work:
    • the classification (in accordance with the Building Code of Australia) of the building to which the certificate relates;
    • If an alternative solution report is required in respect of a fire safety requirement, details of that report including:
      • the title of the report;
      • the date on which the report was made;
      • the reference number and version number of the report;
      • the name of the competent fire safety practitioner who prepared the report or on whose behalf the report was prepared; and
      • if the competent fire safety practitioner who prepared the report or on whose behalf the report was prepared is an accredited certifier—the accreditation number of that practitioner,
    • if any of the building work is exempt from compliance with the Building Code of Australia, the details of that exemption; and
    • if a fire safety schedule is required, the fire safety schedule for the building, and if any of the building work is exempt from compliance with the Building Code of Australia, details of that exemption.

Construction certificates from various consent authorities may look different, but should contain the content set out above. Some certifying authorities may issue a set of “stamped plans”, and others might provide a written list of documents that have been approved with the construction certificate.


Roads Act Consents

What is a Roads Act Consent and when would I need one?

A Roads Act Consent has many names – including names like “Public Road Opening Licence”, “Occupation Licence”, “Road Occupancy Licence”, “Section 138 Approval” and “Road Opening Permit”. All of these phrases can be used to describe a consent given under section 138 of the Roads Act 1993 (Roads Act).

Section 138 of the the Roads Act says that a Roads Act Consent is required if a person wants to:

  • erect a structure or carry out a work in, on or over a road;
  • dig up or disturb the surface of a road;
  • remove or interfere with something on a road;
  • pump water into a road; or
  • connect a road to another road.

It is possible to obtain a Roads Act Consent at any time before performing any of the activities described above.

Generally, these activities will be associated with a development application. A Roads Act Consent can be sought at the same time as a development consent.

Who can issue a Roads Act Consent?

Section 138 of the the Roads Act says that a Roads Act Consent can only be given by a roads authority – usually the RMS or a local council.

How do I make an application for a Roads Act Consent?

Section 139 of the Roads Act says that any person can apply for a Roads Act Consent from the appropriate roads authority. The roads authority can also choose to grant a Roads Act Consent on its own initiative.

There are no requirements in legislation about the application process for a Roads Act Consent. The Land and Environment Court has accepted that there is no required form, and has found that an application has been made in instances where a person has ticked a “Roads Act Consent” box on a development application form, or has submitted a development application with plans that show work on a public road.

That said, roads authorities generally have a processes for making an application for a Roads Act Consent. The best approach is to contact the relevant roads authority to find out about their process.

What does a Roads Act Consent look like?

Section 139 of the Roads Act specifies some special features that a Roads Act Consent might have, including:

  • it may be granted generally, or for a particular situation;
  • it may relate to a specific structure/work/tree (for example,”the removal of the gumtree in front of 123 Fake Street”), or to structures/works/trees of a specific class (for example, “the removal of all trees in front of 123 Fake Street”); and
  • it may be granted with conditions.

There are no requirements in legislation that specify the content of a Roads Act Consent. As a result, Roads Act Consents from various roads authorities may look very different. Some roads authorities may issue a set of “stamped plans”, and others might just provide an approval in the form of a letter or email.

Section 140 of the Roads Act says that a Roads Act Consent can be revoked by a roads authority at any time and for any reason. A revocation must be in writing and must be served on the holder of the Roads Act Consent. The Land and Environment Court has recognised that revocations allow roads authorities to do whatever they consider necessary to facilitate the use of public roads, regardless of any financial losses to a person who is relying on a Roads Act Consent.

 

Posted by

Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.

6 thoughts on “Construction certificates and Roads Act Consents

  1. Thank you Alyce for this article.
    My question relates to – if work is only to be carried out within a road reserve then a DA is not necessary? There is no work carried out on private property!

    Regards
    Phil Johnston

    1. Thank you for your question Phil. Development applications can be required on public or private property. Whether a DA is required for a specific section of public road depends on the specific road. Sometimes works can be carried out on a public road without development consent, and other times development consent will be required.

  2. Hi Alyce
    Thank you for your very clear analysis of the Road Act Consent. My question is regarding an existing DA Approval which contains an approval for a stair to be situated on the road reserve (i.e. not actually on the road) outside the site boundary for pedestrians to access the change in level from the road to the property. Can a roads authority rescind the approval for the stair despite the fact that it is part of the original DA Approval?
    Regards
    Diane

    1. Hi Diane, thank you for your question. An approval under the Roads Act is an extra approval required in addition to any development consent in circumstances where work is proposed in the public road. If you are having difficulties securing an approval under the Roads Act from the relevant roads authority, it may be best to speak with your local council, a town planner, or seek legal advice.

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