Note: State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Codes SEPP) has changed substantially since this case.
Lessons identified from this case
Always read the Codes SEPP carefully. It may contain definitions that vary from the Building Code of Australia. Also:
- a word in the Codes SEPP has the same meaning as in the Standard Instrument unless otherwise defined in the Codes SEPP
- the Standard Instrument is that which is prescribed by the Standard Instrument (Local Environmental Plans) Order 2006.
- Before issuing a complying development certificate (CDC), carefully assess partially overlapping storeys to determine the total number of storeys in the building.
- Be especially vigilant if one storey includes excavation for a basement.
- Carefully assess the required excavation, particularly for sloping sites and for deep footings.
- It's important to keep in touch with other certifiers and 'talk shop' at events and CPD activities, particularly if you are a sole practitioner. Our e-news has a list of events – some are free.
Note: this case was determined by the Board, and then by the Tribunal following an appeal by the certifier. This case study only discusses the matters considered by the Tribunal. The case determined by the Board contained further matters that are not part of this case study.
The certifier approved three (separate) proposed houses as complying development.
Buildings exceeding two storeys are not complying development
For each house, the certifier issued a CDC after incorrectly assessing it as having two storeys.
One of the houses was shown to have three storeys when its partially overlapping levels were stacked together and considered as a whole. However, the certifier misinterpreted the position of a bathroom in relation to an internal void in the storey above, leading to an incorrect overall assessment that the house had two storeys. The certifier made a similar error in relation to another house by failing to consider the relationship of partially overlapping storeys when stacked together.
The certifier also applied the wrong definition of a 'storey' by using the definition contained in the Building Code of Australia instead of that in the Standard Instrument. For one of the houses, the certifier didn't include the basement as a storey and therefore assessed the house as having two storeys.
Take care with excavation requirements
One of the houses was on steeply sloping land, meaning the required excavation became substantial at the rear of the site.
Development standards in the Codes SEPP, such as those for excavation, need to be understood in terms of its overall policy aims. The Codes SEPP is intended to fast-track relatively minor development, not development involving substantial excavation.
Clause 3.29 of the Codes SEPP was recently amended to clarify maximum excavation. A development application is needed if the depth of excavation exceeds that specified in the Standard Instrument.
The Board's findings
The Board found the certifier to have engaged in unsatisfactory professional conduct in issuing CDCs for development that didn't meet the standards of the Codes SEPP.
This was the third case against the certifier within 12 months, a fact which was considered when determining the appropriate disciplinary actions.
The Board imposed:
- a reprimand
- a $20,000 fine
- a condition on the certifier's accreditation to ban the issue of CDCs for two years.
Findings of the Tribunal
The Tribunal upheld the Board's finding of unsatisfactory professional conduct, commenting that a certifier is expected to use great care before issuing CDCs. Certifiers must be careful to ensure a house is two storeys or less – bulky development in residential areas is of concern to many residents.
Also, the Tribunal commented on the number of cases that involve certifiers who are sole practitioners. Sole practitioners often have limited opportunity to obtain professional input from other certifiers, but should seek advice if unsure.
The Tribunal upheld the Board's decision, but varied the ban on issuing CDCs for two years. The variation allowed the certifier to continue issuing CDCs, provided a supporting report was obtained from a town planner before any CDC was issued.
As is often seen, the certifier could have avoided many errors by taking a thorough, methodical approach. The Tribunal's decision to involve a town planner in the certifier's work was intended to provide the certifier with regular opportunity for feedback from other professionals to help avoid future errors.
Legislation and policies cited
- State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
- Standard Instrument (Local Environmental Plans) Order 2006