The recent case of Burwood Council v Ralan Pty Limited raises interesting issues in relation to the extent to which a construction certificate must not be inconsistent with a development consent.
Ultimately, the key matter for determination in the case concerned the issue of 6 constructions certificates (“CCs”) in relation to the erection of a mixed-use development consisting of 268 dwellings in 3 towers, shops and commercial suites over 4 levels of basement parking.
Clause 145(2) of the EP&A Regulation prevents a certifier from issuing a construction certificate which is inconsistent with a DA. The Council argued that there were many inconsistencies between the development consent and the CCs but the most significant inconsistencies was the finish and appearance of the building which resulted due to the external louvres shown on the approved DA drawings not being incorporated into the building and the as-built finishes, including the window frames and colours being different to those in the approved DA drawings.
After considering this issue, the Court concluded that although there were clearly inconsistencies between the CC and the development consent, there had been no wrongdoing on the part of the developer and what was important was that all the fundamentals of the project, as defined in the DC remained in place after certification.
This is an interesting conclusion as there is nothing cl 145(2) of the Regulations which suggests that only the fundamental elements of a consent must not be inconsistent with the development consent. In fact the words of the clause clearly indicate that the design and construction of the building must not be inconsistent with the development consent. It is also of practical concern as it opens the door for certifiers to potentially take a very broad approach when issuing a CC.
To read the full judgment in the case click here (link is external).
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