Is a formal application form required to amend a construction certificate?

In a recent decision, the NSW Court of Appeal has clarified that, while an application to modify the plans accompanying a construction certificate must be in writing, that requirement can be satisfied by lodging plans which themselves set out the changes proposed. A separate application form is not required unless the certifying authority so requires.

Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd [2021] NSWCA 2 was an appeal from a decision of the NSW Land and Environment Court refusing to make declarations and restraining orders in relation to a residential apartment development being erected by Dean Street Holdings near Burwood railway station. The proceedings were brought by Omaya Investments, which owned land on an adjoining site.

The case concerned whether excavation work associated with the proposed apartment building was being carried out in accordance with a construction certificate.

Facts

Development consent had been granted for the apartment development in March 2013 and a construction certificate was issued in March 2018. In March 2019, amended engineering plans were approved by the principal certifying authority which proposed an excavation that was more extensive than had been originally approved. The amended plans were not accompanied by a formal application to amend the construction certificate or the plans which accompanied it.

Issue on appeal

The appellants primary argument was that the deeper excavation at the site was in breach of the development consent as the CC issued in March 2018 had not been validly modified to incorporate the amended set of plans. This, it was argued, was because there had been no written application to the principal certifying authority to do so.

Decision

The Court acknowledged the requirement in cl 139(1)(c) of the Regulation that an application to modify a CC must be delivered by hand, sent by post or transmitted electronically presupposes that the application will be in documentary form. However, the Court observed that neither the Act nor the Regulation required the application to be in any particular form unless the certifying authority so requires: cl 139(1)(b) and cl 141.

The Court pointed out that there was no evidence that the principal certifying authority had required a proposed variation of plans to be in a particular form and on that basis upheld the trial judge’s decision that the amended plans were sufficient themselves to comprise a written document that set out the terms of what the developer was seeking. The Court held that while an application to modify the plans accompanying the certificate was required to be in writing, that requirement was satisfied by the submission of amended plans which clearly set out the changes proposed.