Owners consent with Construction Certificate Applications

This article is in response to a question I received about obtaining an owner’s consent with a construction certificate application.

The question is:

When an application is made for a construction certificate, do certifiers have an obligation to obtain the owner’s consent and check who the current owner is with the Land Titles Office? 

The answer is no.

Applications which require an owner’s consent

Documents that are required to be lodged with a construction certificate application are set out in Schedule 1 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). You can access Schedule 1 by clicking here.

Schedule 1 requires that owners consent is provided with development applications and complying development applications only. It does not require that an owner’s consent be provided with an application for a construction certificate.

What have the Courts said about the requirement for owner’s consent?

In Sydney City Council v Ipoh Pty Ltd the NSW Supreme Court of Appeal discussed the reason why owners consent is required with a development application. Specifically the Court said (with emphasis added):

...the requirement of consent of the owner to a development application under the Act and Regulation is to be considered as a means of supporting the objects and the functioning of that legislative scheme; for example by ensuring that consent authorities are not troubled by applications that are pointless because title requirements for carrying them out will not be satisfied, and by ensuring that owners are not prejudiced by having development consents associated with their land which cause unwelcome increases in the value of land and thus in rates and taxes payable on it…

Arguably these issues do not arise when applying for a construction certificate, given that a construction certificate is simply a certificate to state that work completed in accordance with specified plans and specifications will comply with the requirements of the Environmental Planning and Assessment Regulations 2000.

Why might a certifier ask for an owner’s consent anyway?

A certifier still may request that the owner provide consent to an application for a construction certificate in any instance. Some reasons why include:

  • to ensure consent is obtained to lawfully access the land and carry out a site inspection;
  • as a curtosey to ensure the owner is made aware of the construction certificate application being made; or
  • as a way of addressing the requirements of the Code of Conduct for accredited certifiers (you can access a guide to the Code of Conduct by clicking here).

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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.