May 2018

Changes to the Environmental Planning and Assessment Act - Confusion with a “simplified” certification process

The most significant changes in recent memory to the Environmental Planning and Assessment Act 1979 (Act) came into force on 1 March 2018.

By now, most are getting to grips with, if not entirely enjoying, the new structure and section references of the amended Act.

One part of the amended Act causing confusion is Part 6, which consolidates updated provisions on the building and subdivision certification process.

It is first worth noting that consolidating certification provisions under one part of the Act is a positive move which improves access to the certification provisions and also makes the certification process easier to understand.

The changes

The main changes to the certification provisions include:

  • Greater clarification of the roles of certifiers (section 6.5)

  • A more logical ordering of provisions

  • Creation of the following new certificates

    • subdivision works certificate (sections 4(b) and 6.12-6.14) for physical building works associated with a subdivision that would previously have been subject to a construction certificate;

    • building information certificate (Division 6.7, incorporating sections 22 to 6.26), being the new term for building certificates previously governed by sections 149A to149G of the former Act.

  • Construction certificates and subdivision work certificates being required for the erection of a building and for subdivision work respectively (sections, 6.7 and 6.13), rather than the seemingly more stringent requirement that the erection of a building and subdivision work must not commence until a construction certificate has been issued (sections 81A(2)(a) and 81A(4)(a))

    • it remains to be seen whether this will be interpreted as permitting some works to be carried out.

  • Councils will be required to keep a record of building information certificates they issue and provide public access to them (section 6.26(8)-(10))

  • Granting the Land and Environment Court the express power (under section 6.32) to declare a construction, subdivision work, subdivision or compliance certificates invalid where plans and specifications are not consistent with the development consent for which it was issued, replaces clause 145(1)(a) of the Regulation which requires that a construction certificate must not be issued unless the plans and specifications are not inconsistent with the development consent

    • this replaces clause 145(1)(a) of the Regulation which requires that a construction certificate must not be issued unless the plans and specifications are not inconsistent with the development consent

    • the intent of the change is to provide the community with greater confidence in the certification process and avoid illegitimate changes to plans and specifications after development consent has been granted by a consent authority

    • elevation of the requirement into the Act, coupled with the subtle but significant changing of the wording, should alert both council and private certifiers that variations between development consent plans and specifications and certificate plans and specifications may face greater scrutiny

    • it opens certificates up to legal challenges from third parties rather than councils carrying the exclusive burden of monitoring and reporting

    • the three month time limit, from the date of issue of the certificate, within which proceedings must be brought may preclude many third parties from challenging certificates on account of variations not being discovered in time

    • alternatively, it could result in speculative court applications from particularly well resourced and committed objectors to a development

    • it seems inevitable that the new wording (not consistent with the development consent) will require and be the subject of judicial interpretation

    • the Court retains discretion with respect to the making of a declaration of validity.

The confusion

The aspect of the new provisions creating confusion is their date of commencement.

When accessed via the State legislation and other legal portals, the current Act exhibits the new Part 6 provisions. However, the majority of them do not take effect until 1 September 2018.

Their status is clarified by clause 18 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (Savings Regulation).

Clause 18 of the Savings Regulation states that Part 6 of the amended Act does not apply until 1 September 2018 and that until then, the former building and subdivision provisions, defined as sections 81A (2)–(6), 86 and 121ZP and Part 4A (incorporating sections 109C to 109Q) of the former Act remain in force.

The only exception is Division 6.7 (building information certificates) under Part 6 of the amended Act which commenced on 1 March 2018 in place of former sections 149A to 149G.

That exception aside, councils are to continue to use the former building and subdivision provisions until 1 September 2018.

A new principal Regulation will also need to be made before then to give effect to the Part 6 provisions. Look out for further updates on the new Regulation from the Environment and Planning group at Bartier Perry.

Conclusion

For now, it is largely business as usual for council certification teams.

As most councils have been proactive in implementing and maintaining a record of building information certificates, this new statutory requirement will have little impact.

However, more significant changes are on the horizon and, come 1 September, they may impact on the daily operations of council certification teams.

We await a draft Regulation which will provide greater detail with respect to the practical implementation the changes to the Act.

Authors: Steven Griffiths & Dennis Loether