The authority that private certifiers have under the Environmental Planning and Assessment Act to issue Complying Development Certificates can be a genuine "two-edged sword", providing both a business benefit and a source of substantial professional risk. While issuing CDCs can be an excellent and profitable business opportunity for certifiers, mistakes or errors of judgement in the process of granting CDCs can "backfire" badly and can open the certifier up not only to the risk that a council might seek to invalidate the CDC (and seek the legal costs of an action in the Land and Environment Court for doing so, as discussed in a previous post on this blog); but also to the danger of disciplinary action by the Building Professionals Board. Consequently, whenever a certifier approves a CDC, it is essential that the certifier make sure that all the i"s are dotted and all the t's are crossed, and that every aspect of the proposal meets the requirements of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.
The hazards of incorrectly issuing CDCs was graphically illustrated in a case decided by the Administrative Decisions Tribunal in August 2013, Qiu v Building Professionals Board (2013) NSW ADT 289. The text of the Tribunals decision can be found at the following link:
http://www.austlii.edu.au/au/cases/nsw/NSWADT/2013/289.html
The essence of the Qiu case was that, with respect to three separate development proposals, the certifier had granted CDCs where he could not lawfully do so. Although Part 3 of the Exempt and Complying Development SEPP allows CDCs to be issued for new single and two storey dwelling houses, the Building Professionals Board found that the certifier had erroneously issued CDCs for three storey buildings.
In one case, the BPB's investigator found that the certifier had approved a dwelling in which a part of the bathroom at the basement level, a part of the dining room at ground floor level, and a part of a retreat at first floor level, aligned so that when stacked together they formed a three storey building. It was determined by the BPB that the certifier had incorrectly interpreted the position of an en suite bathroom on the ground floor as aligning with an internal void.
In the second case, the certifier again mistakenly approved a dwelling that was also found to have 3 storeys. The situation with this building was that part of a single garage at the basement level, and parts of galleries at the ground and first floor levels, aligned so that when stacked they produced a 3 storey building. In arriving at a judgment that the building only had 2 storeys, the certifier incorrectly relied upon the definition of the term "storey" in the Building Code of Australia which provided that a basement should not be counted as a "storey" if the floor level of the storey above was less than 1 metre above the ground floor. The BPB rejected this interpretation, and found that instead of relying on the definition of "storey" in the BCA, determined that the certifier should have based his determination on the definition provided in the Standard Instrument - Principal Local Environmental Plan (which provides that a "storey" is a space in a building that is situated between one floor level and the floor level next above).
In the third case, the BPB made findings that the plans for the dwelling in question called for a plant room at basement level, a walk in robe and bedroom en suite at ground level and part of a family room on the first level which again, when stacked together, formed a three-storey building.
Beyond these issues, the ADT confirmed that the certifier had approved several other types of building work that did not comply with the requirements of the SEPP. These included: a) approving plans that did not provide for a setback of at least 3 metres from the boundary of a public reserve as required by clause 3.19(a) of the SEPP; b) failing to require the installation on a balcony in contravention of clause 3.23; approving excavation to a depth of more than 1 metre below existing ground level to allow for the construction of a basement in contravention of clause 3.29; and failing to require that the private open space of a new dwelling be directly accessible from the habitable rooms, in contravention of clause 3.25.
In Qiu, the certifier's failure to ensure that the CDC plans he approved were in compliance with the SEPP led both the BPB and the ADT to make findings that the certifier had been guilty of unsatisfactory professional conduct. Although the BPB made orders imposing a fine of $20,000 and removing the certifier's authority to issue CDCs for a period of 2 years, these orders were varied on appeal to the ADT. The fine was reduced to $7,000 and instead of removing the certifier's power to issue CDCs, a condition was imposed on the certifier's accreditation which required him to provide copies of the CDCs that he issued to the BPB within 2 days of issuance. Additionally, the ADT affirmed a reprimand that the BPB had given to the certifier.
The result in the Qiu case illustrates the kind of serious sanctions that may be imposed on a certifier who issues CDCs that do not comply fully and strictly with the provisions of the SEPP Exempt and Complying Development Code. It provides a warning signal that certifiers who wish to avoid these types of sanctions must adhere faithfully to the specifications in the Code. Where a question of compliance is in doubt, the careful certifier will err on the side of caution, and require the applicant to secure a full development approval from the relevant consent authority.
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