Building and Construction Alert: Planning Law Perspectives

by David Nicholls, Olivia Williamson

Issue 3

Welcome to the third issue in a rolling series of Alerts offering planning law perspectives on issues relevant to the building and construction industry.

Obligations of a private certifier

There are general restrictions on a private certifier granting a building development approval.[1] The recent judgment of the District Court of Queensland in Drew v Bundaberg Regional Council [2013] QDC 1 reiterates the importance of observing these restrictions. In particular, it highlighted the inability of a private certifier to grant an approval if, under the Sustainable Planning Act 2009 (SPA), a concurrence agency has jurisdiction for part of the building assessment work and that assessment has not occurred.

The private certifier in the Drew case issued a decision notice approving the construction of two carports subject to conditions, including a final inspection.

The Council issued a complaint and summons approximately eight months after the decision notice was issued, alleging contravention of section 83(1)(d) of the Building Act 1975 (BA) on the basis that the application was approved prior to it being assessed by the Council as a concurrence agency, and there was a failure to refer the application to the Council (as a concurrence agency) in accordance with section 272 of the SPA.

Following a hearing, the Magistrates Court in Bundaberg found the private certifier guilty of the offence. A fine of $7,500 was imposed and a conviction was recorded. The Magistrate also ordered the private certifier to pay the Council’s costs of the proceedings amounting to $21,727.39.

The private certifier appealed to the District Court against the decision. There were a number of grounds of appeal but the central issue for the appeal judge was whether the development application was required to be referred to the Council as a concurrence agency.

The development application sought approval to construct a “proposed gabled carport” with a GFA of 42m2 and a “proposed carport” with a GFA of 36m2. The application also identified an existing shed on the land with a GFA of 21.6m2. That shed was an approved structure. The certifier told the Magistrate that he did not consider it necessary to make any enquiry regarding the status of the shed.

The total GFA of the proposed and adjacent structures was falsely represented as being 99.6m2. The actual GFA, including the existing shed, was 132m2. The trigger for concurrence agency assessment was where the GFA of all buildings exceeded 100m2. The Magistrate found that the application documents (which the private certifier had regard to) were deceptive and deliberatively designed to avoid referral to the Council. This finding was accepted as justified by appeal judge.  

The private certifier argued that the obligations in section 83(1)(d) of the BA should be determined by reference to the development approval applied for and because the building development application itself did not seek approval for works with a GFA exceeding 100m2, there was no obligation to refer the matter to the Council.

This argument was rejected by the District Court for the following reasons:

  1. It would provide a defence for a private certifier even in the face of fraud or gross negligence.
  2. It would make redundant the professional responsibilities imposed on a certifier.
  3. It ignores the statutory requirements pursuant to section 313(3)(b) of the SPA for a private certifier to assess the application having regard to any existing development approvals.

Ultimately the appeal against conviction was dismissed, the fine was reduced to $5,000 (due to the minor consequences of the breach, including that the application was subsequently approved by the Council with only minor changes) and the decision to record a conviction was overturned. These outcomes were handed down with an observation that if the private certifier had been shown to be complicit in the falsified application, the recording of a conviction would have been entirely warranted.

The Court also made the following comment regarding the private certifier’s conduct:  

“To describe what occurred as an ‘error’ tends, in my view, to materially understate the real facts. To describe something as an ‘error’ tends to suggest that what occurred involved some innocent mistake or oversight or error of judgment or both. That is not what occurred in this case. The appellant’s breach of law was a direct consequence of his failure to act in a way even remotely consistent with his statutory obligations. That private certifiers act in a professional manner in accordance with their statutory duties is an important component of orderly development under local authorities’ planning regimes. In cases involving flagrant disregard of statutory duties, as is the situation here, deterrence is an important consideration.”

The Court did not upset the Magistrate’s decision to award costs in the favour of the Council.

Outcomes for private certifiers

This case echoes the importance of a private certifier acting in the public interest when performing the functions of a private certifier, in particular, exercising a high level of vigilance equal to that exercised by local government[2]. Practically, private certifiers need to assess development applications with rigour, including looking beyond just the development application documents, to consider the context of the application and whether further enquiries are necessary to ascertain the true state of affairs.

In our next instalment in this series, we further consider the case law relating to assessment of applications by certifiers. Specifically, the statutory duty imposed on private certifiers to not issue an approval in the absence of a necessary underlying development permit or to not issue an approval that is inconsistent with an existing development permit.

With offices in Brisbane, Perth and on-the-ground support in Shanghai, HopgoodGanim offers commercially focused legal advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.


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