Challenging the decisions of private certifiers — Cairo v City of Norwood Payneham & St Peters [2018] SAERDC 11

19 April 2018

Cairo v City of Norwood Payneham & St Peters [2018] SAERDC 11 (“Cairo”) is the third decision by the ERD Court to consider the authority of private certifiers under the Development Act 1993 (“the Act”) and a council’s ability to challenge their decisions.

Contradictory views have been expressed by a number of different experts on the impacts of this case on future challenges to the decisions of private certifiers.

Briefly, we are satisfied that Cairo does not prevent councils from refusing to issue development approval to privately-certified Residential Code applications where the council is concerned that the certifier has acted beyond power by granting consent to a proposed development which is not Code-complying.

The reasoning behind our position is:

• the ERD Court has delivered two judgments concerning challenges to the decisions of private certifiers prior to Cairo being Liu & Anor v City of Playford [2014] SAERDC 31 (click here for our Alert on this case) and Mundy v City of West Torrens [2016] SAERDC 30 (click here for our Alert on this case).
• in Liu
  • the Council decided to not grant development approval to a proposed development which was granted Building Rules consent by a private certifier;
  • the proposed development was a merit form of development and Development Plan consent had, therefore, been granted by the Council;
  • the Council disagreed with the building classification assigned by the private certifier. The Council formed the view that the building classification was inconsistent with the nature of the development which had received Development Plan consent and that this was an inconsistency for the purposes of regulation 46 of the Development Regulations 2008;
  • the Council did not, therefore, issue development approval and it was this determination which was appealed to the ERD Court;
  • the ERD Court found that the purpose of regulation 46 was to ensure that approved plans are consistent. The Court determined that councils could not interfere with the decision of a private certifier to determine the classification of a building. Rather, if a council is satisfied that plans were consistent, development approval must be granted;
• in Mundy:
  • the proposed development was Code-complying and both Development Plan consent and Building Rules consent had been granted by a private certifier;
  • the proposed development contained two departures from Code requirements which the Council asserted were not “minor”. The Council argued that the proposed development was not, therefore, Code-complying, that the private certifier had no legal ability to grant Development Plan consent and the consent was invalid – a nullity;
  • the Court agreed with the Council’s position and upheld it.
• it must be noted that, since Mundy, regulation 8A of the Development Regulations 2008 has been amended to allow private certifiers to grant Development Plan consent to Code developments which propose more than 1 departure from the Code. However, these departures must still be “minor” in nature.
• in Cairo:
  • the Council granted Development Plan consent to Code-complying semidetached dwellings. In granting that consent, the Council imposed a condition that restricted the use of the front room of each dwelling to a games/store room. This condition was accepted by the applicant;
  • the approved plans showed that the games/store rooms would be enclosed by bi-fold doors, which formed part of each dwelling’s façade;
  • the dwellings received full development approval and were constructed on site. During construction the bi-fold doors were replaced by panel lift doors. The panel lift doors, an amendment to the original development approval, was the subject of a privately-certified variation application;
  • when the Council received the privately-certified consents, it refused to issue development approval. The Council took the position that the decision by the private certifier was a nullity as the panel lift door changed the nature of the use of the games/store room to a garage and, therefore, the variation application was not Code-complying.
•   in upholding the appeal, the ERD Court found:
  • the private certifier was able to treat the variation application as an alteration to an existing dwelling under section 35(1b) of the Act, as the dwellings had been erected on the subject land and were previously approved as Code-complying dwellings; and
  • the change from bi-fold doors to panel lift doors did not change the nature of the use of the rooms from games/store rooms to garages; and
  • the condition imposed by the Council and which was accepted by the applicant, would serve to prevent the use of the rooms as garages.
• On our reading of Cairo, the ERD Court did not make any findings which exclude the ability of a council to refuse to grant development approval to privately-certified, Code complying developments where it has concerns regarding the fundamental validity of the consents granted.
• Rather, this decision is very fact-specific such that it only carries weight in respect to Code-complying development applications which have similar facts regarding the use of rooms and conditions imposed on consents.

For more information please contact Victoria Shute at 08 8113 7104 or vshute@kelledyjones.com.au.