Deconstructing Construction Certificates

What is a Construction Certificate?

Section 109C(1)(b) of the Environmental Planning and Assessment Act 1979 (EPA Act) provides the definition of a Construction Certificate (CC) as follows:

(b) a construction certificate, being a certificate to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in section 81A (5).

Put simply, a CC is a statement from the certifier to the effect that work done in accordance with the plans specified in the CC will be compliant with the conditions of consent relating to the development and will be compliant with the Building Code of Australia.

When a CC is issued, it is taken to form part of the conditions of consent. Section 80(12) of the Act provides:

(12) Effect of issuing construction certificate
If a consent authority or an accredited certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 96).

If a CC is intended to form part of the consent to which it relates, it is easy to see why the legal and planning community reeled in the wake of the decision in Ralan v Burwood City Council (No 3) [2014] NSWCA 404 (Ralan).

In Ralan the Court found that if there was an inconsistency between the conditions of consent and the terms of a CC, the CC will prevail over the consent. The Court’s decision gives a CC the status of a higher-order document. Much like the way the provisions of an LEP will trump the provisions of a DCP in the event of an inconsistency, so too will the terms of a CC trump the conditions of a consent.

But, only to the extent that they are inconsistent. If there is no inconsistency, then both documents continue to work together. There needs to be a disharmony or a contradiction between the two before the CC’s new found muscles can be flexed (see Ralan at [147]).

When can a CC be issued?

A CC will have no effect if it is issued after building or subdivision work has commenced.

We can see the legislature at work with the 2005 amendment to the EPA Act introducing 109F(1A), which provides that ‘a construction certificate has no effect if it is issued after the building work or subdivision work to which it relates is physically commenced on the land to which the relevant development consent applies’.

Interestingly, prior to the tabling of the amending act which introduced s 109F(1A), Justice Talbot of the Land and Environment Court had just handed down his judgment in Marvan Properties v Randwick City Council [2005] NSWLEC 9. In that case, Talbot J concluded at [35] that a CC could be issued retrospectively for work which had already commenced.

Since s 109F(1A) came into effect until 3 March 2006, retrospective CC’s issued before that date remain valid.

Then how are works retrospectively regularised?

If a CC has no power to regularise (‘legalise’) work after that work is commenced, the only option available to the applicant is to obtain a Building Certificate (BC).

However, a BC doesn’t actually regularise the work – it merely warrants that the Council issuing the BC will not take enforcement action with respect to the works. BCs protect owners from enforcement action indefinitely with respect to the construction work itself.

However, the owner is only protected for 7 years from enforcement action relating to the deterioration of the structure resulting from fair wear and tear.

How do CCs operate in the context of section 96 modifications?

If your approved plans are modified prior to construction commencing, the CC that is subsequently issued will relate to the consent as modified.

If your plans are modified after your CC is issued and work has already commenced, you will need to get a new CC for that part of the works which is the subject of the modification and which has not yet been physically commenced.

Modification should not be a barrier to the issue of a CC, so long as the CC relates only to work which has not been commenced.

If works are not carried out to plan and are completed, the only option available to the owner is to obtain a BC.

If you try to sell a house to which unapproved modifications have been made, any purchaser that orders a BC from council as part of the conveyancing process is going to cause lots of problems. You’re better off approaching Council in the first instance to have the works approved and constructed pursuant to a CC.

If you need more information, contact us today.