The resulting development (substantial alterations to an existing duplex) was inconsistent with the consent.
Given the sheer number, scope and cumulative impact of the changes, the certifier should not have issued a construction certificate. Instead, the applicant should have applied to the council for a section 96 modification to the consent.
Lessons identified from this case
When applying the 'not inconsistent' test to assess an application for a construction certificate:
- consider the impact of numerous minor changes to the development consent – such changes may collectively make the development inconsistent with what was approved
- consider the council's reason for imposing each condition of consent (for example, to retain heritage, privacy or amenity).
- If a building has heritage value, be particularly vigilant when assessing proposed changes to its external appearance.
Applying the 'not inconsistent' test
The legislation allows for some minor variations between the conditions of consent and a building's actual design and construction. However, a certifier must not issue a construction certificate unless the proposed design and construction is 'not inconsistent' with the development consent [Environmental Planning and Assessment Regulation 2000 clause 145(1)(a)].
One minor difference is unlikely to make a development 'not inconsistent', but the cumulative impact of numerous minor differences needs careful consideration.
In this case, the sheer scope of the approved changes raised serious concerns as to the certifier's professional understanding and insight, particularly in regards to a certifier's role as a public official who works independently of the client to protect the public interest.
The development consent was for substantial alterations to a Federation style building that had been internally reconfigured as a duplex.
This development was part of an investigation that included four complaints against the certifier. This case study only refers to the complaint that corresponds to this development.
Many of the conditions of consent had been imposed by the council to retain the building’s heritage value. However, the construction certificate authorised some changes to the consent that affected the fire safety of the building, not just its appearance.
The development consent allowed the ridge height to be raised and an attic to be created. The duplexes would then share a single ridge cap rather than the previous two individual ridges, a change affecting the fire safety measures required under the Building Code of Australia. To reduce the risk of fire spread, a competent certifier would have required a fire-separating wall between the duplexes which extended to the underside of the ridge cap. This was not specified in the construction certificate.
Another major departure from the consent was to replace the tongue and groove timber floor with a concrete floor, which removed joinery features of significant heritage value. A competent certifier would have recognised the contribution of the floor and joinery to the building’s character and determined the proposal to be inconsistent with the consent.
The Board's findings
The Board found the certifier to have engaged in professional misconduct by issuing a construction certificate and endorsing plans that were inconsistent with the conditions of consent and did not meet the fire safety requirements of the Building Code of Australia.
The Board imposed a number of disciplinary actions in relation to the four complaints against the certifier, such as cancelling the certifier's accreditation, imposing a five-year ban on re-applying for accreditation, and issuing a fine.
Findings of the Tribunal
The certifier appealed the Board's decision to the Tribunal, which affirmed the finding of professional misconduct and that the certifier had made 46 errors in issuing the construction certificate. The Tribunal also upheld the Board's disciplinary decision, making reference to the Board's Disciplinary Penalty Guidelines and the certifier's lengthy disciplinary history.
- Environmental Planning and Assessment Act 1979 section 96
- Environmental Planning and Assessment Regulation 2000 clause 145(1)(a)
Links to more information
- Planning Institute of Australia e-news 10 May 2012: When you need a section 96 modification as opposed to having your certifier sign off on minor amendments
- Land and Environment Court: Lesnewski v Mosman Municipal Council & Anor  NSWLEC 99 – a case covering similar issues to this case study
- Information sheet: What do councils consider when they apply section 96? (issued June 2000)