Lessons identified from this case
- Certifiers are required to respond promptly and professionally to concerns about development they are certifying. In this case, a prompt response didn't stop the concern developing into a formal complaint against the certifier, but did help ensure the complaint was dismissed.
- Certifiers should read advice issued by the Building Professionals Board and put it into practice. The Board's information sheet Managing complaints about development offers useful guidance. Certifiers should keep careful written records of correspondence and actions taken in response to concerns about a development. This is important evidence if a complaint is later made against the certifier.
Setting the scene: relevant legislative provisions
Environmental Planning and Assessment Act 1979
- Section 96 provides a process for a developer to apply to the consent authority (usually the council) to modify a development consent for a proposed change to the work. Councils can approve such applications, even retrospectively.
- Section 109L authorises certifiers to issue notices requiring work to be carried out (often called a 'notice of intention to serve an order'). The certifier must send a copy of any notice to the council within two days of issue; the council has discretion to take any action it deems appropriate, such as issue an order requiring work to be done.
Environmental Planning and Assessment Regulation 2000
- Clause 267A requires a principal certifying authority (PCA) to keep written records for 10 years of each complaint received about a development and any action by the PCA in relation to the complaint.
A certifier issued a construction certificate (CC) for a new five-storey apartment building and was appointed the PCA for the development.
The development consent limited the building height and required the rooftop ventilation systems to be located within the building envelope unless further council approval was granted. It also required a surveyor's report to confirm compliance with the height limit, before an occupation certificate could be issued.
A neighbour to the development scrutinised the plans endorsed with the CC and contacted the council with concerns about the proposed ventilation systems.
Certifier entitled to rely on engineer's statement when determining CC
The consent didn't require the CC application to verify exact construction details of the ventilation systems, and relevant drawings weren't ready when the CC application was made. Rather, a 'design verification statement' from a mechanical engineer was submitted to verify compliance with the development consent and the performance requirements of the Building Code of Australia. The certifier relied on the statement, as he was entitled to and as is standard practice.
The design of the ventilation system didn't change between the plans approved by the development consent and those approved by the CC. Also, there was no evidence the certifier endorsed plans that would necessitate work outside the building envelope.
Neighbour complains proposed work will breach consent
A neighbour to the development contacted the council, stating the ventilation ducts would breach the approved height limit if installed in accordance with the CC. She felt the certifier should have identified this potential for non-compliant work when assessing the CC application.
However, the consent didn't require the CC to verify in detail how the system would be constructed. The council had foreseen the possibility of ventilation ducts having to exceed the height limit, as expressed in the consent condition for the work to be located within the building envelope unless further council approval was granted.
The certifier managed the complaint professionally and documented his actions
The following timeline shows that the certifier handled the complaint in a manner consistent with the Board's information sheet for certifiers Managing complaints about development.
This information sheet recommends timeframes for responding to concerns about a development, what form a response should take and how certifiers should document their actions.
Timeline of events:
- Day 1: the certifier received a letter from the council about the complainant's concerns over allegedly unauthorised work. The letter didn't provide the complainant's contact details nor all particulars of the complaint. The letter required the certifier to investigate the matter and reply within seven days with action taken.
- Day 5: the certifier replied to the council's letter advising he had sought a surveyor's report from the developer.
- Day 12: the complainant phoned the certifier, asking why he hadn't contacted her about her complaint. The certifier explained the council hadn't forwarded her contact details.
- Day 13: the certifier sent a copy of the council's letter to the builder and required comment and action.
- Day 19: the certifier met with the complainant on site and advised he had asked the developer to provide a survey report to confirm compliance with the consent.
- Day 20: the certifier emailed the complainant a summary of the previous day's meeting.
- Day 20: the certifier emailed the council an account of his actions in response to the council's letter.
- Day 20: the certifier visited the site to assess that work was proceeding as per the consent. The builder affirmed this and acted on the certifier's advice to lodge a section 96 application to locate ventilation ducts outside the building envelope.
A few months later the complainant contacted the certifier about the section 96 application. 'Restarting' the timeline at this point again shows the certifier's professional response:
- Day 1: the complainant emailed the certifier about unauthorised work on the building roof, extending beyond the approved height.
- Day 3: the certifier phoned the complainant to say he would investigate the matter.
- Day 4: the certifier discussed the matter with the architect who confirmed that a section 96 application was pending to authorise the rooftop works retrospectively.
- Day 11: the certifier inspected the site and issued a section 109L 'notice of intention' for the unauthorised work.
- Day 11: the certifier emailed the complainant, advised her concerns would be acted on and gave advice on the section 96 process.
- Day 25: a site meeting was held with the certifier, architect, builder and council. The council confirmed it was responsible for any further enforcement action since the certifier had already issued a notice of intention.
When corresponding with the complainant, the certifier had noted he couldn't initially contact her as the council's letter withheld her details. He had also explained the developer's responsibility to comply with the consent, and the section 96 process of modifying a development consent.
Despite this the complainant made a formal complaint to the Board, alleging the certifier hadn't responded appropriately to her concerns and had issued the CC improperly.
Findings of the Board
The Board dismissed the complaint because it did not constitute professional misconduct or unsatisfactory professional conduct by the certifier.
In relation to the unauthorised work, the Board held that the PCA's role is to be satisfied the work is proceeding in accordance with the Building Code of Australia and the development consent. A PCA has no power to modify a consent – the developer is responsible for obtaining a modified consent for changes to the approved design. Further, during a site inspection the certifier had identified the issue and had advised a section 96 modification should be applied for.
In relation to the certifier's conduct, the Board found he had acted promptly and professionally.
Good communication helps resolve development issues quickly and, as much as possible, to mutual satisfaction. Responding promptly and professionally to a neighbour's concerns is the best defence a certifier has against a complaint being lodged with the Board.
In this case, the certifier's diligence didn't stop the matter developing into a formal complaint. However, the certifier had kept careful records of correspondence proving he had acted promptly and as far as his enforcement powers allowed. This greatly assisted the certifier in responding to the complaint made to the Board and resulted in the complaint being dismissed.