The recent decision of Sader v Elgammal provides some timely comments from the Court regarding consistency between development consents and construction certificates.

The law

Section 6.4(a) of the Environmental Planning and Assessment Act 1979 (EPA Act) provides that a construction certificate is:

a certificate to the effect that building work completed in accordance with specified plans and specifications or standards will comply with the requirements of the regulations.

Section 6.7(1) of the EPA Act provides that a construction certificate is required for the erection of a building in accordance with a development consent. Section 6.8(1)(a) provides that a construction certificate must not be issued with respect to the plans and specifications for any building work unless “the requirements of the regulations have been complied with.”

At the time the construction certificate was issued in this case, the now repealed Environmental Planning and Assessment Regulation 2000 (the Regulation) was in force. Clause 145 of the Regulation relevantly stated (with emphasis added):

145 Compliance with development consent and Building Code of Australia

(1) A certifier must not issue a construction certificate for building work unless—

(a1) the plans and specifications for the building include such matters as each relevant BASIX certificate requires, and

(a) the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifier under clause 140) is consistent with the development consent, and

(b) the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the construction certificate was made).

The requirement of “consistency” was inserted into the Regulation on 1 December 2019. Prior to the amendment clause 145 used the phrase “not inconsistent with” the development consent.

A construction certificate may be declared to be invalid as provided for in section 6.32 of the EPA Act which states:

6.32 Validity of certificates under this Part

Without limiting the powers of the Court under section 9.46(1), the Court may by order under that section declare that a certificate under this Part (other than an occupation certificate) is invalid if—

(a) proceedings for the order are brought within 3 months after the issue of the certificate, and

(b) the plans and specifications or standards of building work or subdivision work specified in the certificate are not consistent with the development consent for the building work or subdivision work.

Observations by the Court regarding consistency

In relation to the requirement of “consistency” between a development consent and a construction certificate, the Court made the following observations:

1. In construing a development consent, the development consent is to be construed as a whole having regard to the words used in their text and context (in this case, the development consent clearly provided in condition 1 that the development consent permitted the carrying out of the works identified in the approved nominated plans unless amended by a condition imposed upon that development consent).
2. In this case, a reference to the plans as approved in the development consent indicated that in the majority of those plans a wall and some natural rock was to be retained. The only plan that indicated the wall and the natural rock was to be removed was that depicted in the Erosion and Sediment Control Plan. On a proper construction of the approved plans, the Court did not accept that such depiction permitted the demolition of the wall or the natural rock.
3. The approved plans were a suite of plans that depicted different aspects of the development proposed and approved. In this case, there was a plan that depicted the extent of demolition. The demolition plan did not depict the demolition of the wall or the natural rock. The Erosion and Sediment Control Plan depicted the mechanisms to be put in place to protect the site and the surrounding environment from erosion and the exportation of sediment during the construction process.
4. To the extent of inconsistency between the two plans as it relates to demolition, the Court was of the view that the extent of demolition as depicted in the demolition plan prevails. Therefore, there was no part of the development consent approved plans that permitted the demolition of the wall or the natural rock.
5. a development consent can only relate to the development for which consent is sought. In this case, not only was development consent not sought for the demolition of the wall or the natural rock those features were expressly excluded from the development consent as shown in the approved plans. In this regard, it was not appropriate to interpret a condition in such a way that it allows development to be undertaken without a development application being made for that development.
6. In this case, it did not matter whether the relevant provisions in the EPA Act were “not inconsistent” or “are consistent”. On any test, the development consent and construction certificate could not work together, in that compliance with both could not be simultaneously achieved and the differences are material and substantial.

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A full copy of the decision can be accessed by clicking here.