Posted on October 14, 2024 by Liam Mulligan and Thuy Pham 2

Availability of Judicial Review to Set Aside Construction Certificate Confirmed by Court of Appeal

Recent years have seen several developments in the law regarding the validity of instruments such as development consents, complying development certificates and construction certificates. We have blogged on many of these cases (see here and here for instance).  The Court of Appeal in Cameron v Woollahra Municipal Council [2024] NSWCA 216 (Cameron) has continued these developments (and perhaps identified the direction of future developments).

Ralan 

In the well known case of Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404, the Court of Appeal held that construction certificates issued on the basis of plans that are inconsistent with a development consent are not liable to be set aside on grounds of that inconsistency alone. Rather, the Court held that the scheme of the EPA Act and Regulations require certainty and predictability, which would not be furthered if statutory certificates such as CCs were to be set aside due to a (potentially) minor inconsistency between a consent and the subsequent CC.  Under the Ralan principle, a CC would only be declared invalid in the case of legal unreasonableness – that is, where the CC issued is so inconsistent with the underlying approval that no certifier acting reasonably could have issued the certificate.

Instead, the Court reasoned, the issue of a CC inconsistently with the underlying consent represents a professional failure by the relevant certifier, and any such professional failure can be addressed by disciplinary action against the certifier under the provisions of the Building Professionals Act 2005. 

Cameron 

In Cameron, the appellants had applied to modify a development consent, seeking to add a cellar level to the proposed development, among other things. The modification was approved but included a condition – condition C.1(d) – which deleted the cellar level and provided that the area must remain unexcavated. The modified development consent approved three construction plans in each case with the notation “Cellar Level Deleted”.

A certifier subsequently issued a construction certificate for the site which appeared to permit excavation of the area where the cellar level had been proposed for the purposes of building a crane base and installing a crane.

At first instance, Pritchard J held that the modified development consent, properly construed, prohibited excavation within the area previously identified as the cellar level – for all purposes. The plans, specifications and standards of building work specified in the construction certificate were not consistent with the modified development consent and so, the primary judge found it was legally unreasonable for the certifier to determine that the construction certificate was consistent with the modified development consent.

Pritchard J therefore made a declaration of invalidity in respect of part of the construction certificate.

On appeal, the Court of Appeal agreed that the certifier’s decision to issue a construction certificate was legally unreasonable.  However,  there was a question as to the legal consequence of such a finding. Ultimately, the Court of Appeal unanimously held that a finding of jurisdictional error has the effect that the decision is properly to be regarded as no decision at all which. Usually, this will result in a declaration of invalidity.

In the circumstances of this case, the only consequence of the finding was the setting aside of the construction certificate (in part rather than in whole).

The Court held that Ralan does not address the availability of judicial review for jurisdictional error under s 20(2) of the Land and Environment Court Act 1979, nor the consequences of a finding of jurisdictional error. As such, it is now confirmed that judicial review is available to an appellant seeking to challenge a construction certificate on the basis that the decision of the certified involved a jurisdictional error.

A link to the full text of the judgment is at Cameron v Woollahra Municipal Council [2024] NSWCA 216.

Section 6.32 of the EPA Act

For completeness, we note that following Ralan, section 6.32 was introduced to the EPA Act (along with s 4.31 – an equivalent provision relating to complying development certificates). That section gives the Court the power to conduct a “direct review” – that is, to determine for itself whether a CC is “consistent” with the consent to which it relates – and to declare invalid a certificate that is not consistent with the underlying consent.

However, sections 4.31 and 6.32 include a hard time bar – in each case the proceedings must be commenced within 3 months of the certificate being issued. This means that it is important to act quickly and the power will not be available in cases where inconsistency is detected more than 3 months after the date of the certificate.

If you have any questions regarding this article, please leave a comment below or contact Liam Mulligan on 02 8235 9715 or Thuy Pham on (02) 8235 9731.