The Scope and Purpose of the Legislation
166There are other considerations which suggest that the scope and object of the legislation, construed as a whole, does not require a construction certificate issued in breach of s 109F(1)(a) of the EPA Act to be held invalid. In particular, the scope and object of the legislation do not require a construction certificate issued in breach of cl 145(1) of the EPA Regulation to be held invalid.
167First, the prohibition in s 109F(1) is not directed to the person who has the benefit of a development consent. It is directed to the person who is empowered by s 109D(1)(b) of the EPA Act to issue a construction certificate, namely a consent authority, a council or an accredited certifier. It is for this reason that an accredited certifier who issues a construction certificate in breach of s 109F(1)(a) of the EPA Act and cl 145(1) of the EPA Regulation may be liable to prosecution under s 125 of the EPA Act: Moy v Warringah Council. It is true that an accredited certifier can be appointed as PCA to a particular project by the person having the benefit of a development consent (s 109E(1)), but that person cannot control an accredited certifier's performance of his or her statutory responsibilities. Yet it is the developer who may suffer adverse consequences by relying in good faith on a construction certificate that has apparently been lawfully issued if it is later held to be invalid for inconsistency with the development consent. Depending on the circumstances, some of those consequences could be visited on a third party, such as a financier of a project or a purchaser of a unit in the development.
168Secondly, s 109F(1A) of the EPA Act strongly suggests that a construction certificate issued in breach of s 109F(1)(a) is not invalid. Section 109F(1A) expressly states that a construction certificate has no effect if it is issued after the building work to which it relates is physically commenced. This provision demonstrates that if Parliament intends that a construction certificate issued in breach of statutory requirements is to be held invalid, it says so explicitly. Section 109F contains no provision equivalent to subs (1A) specifying the consequences of a contravention by a certifying authority of s 109F(1)(a).
169I appreciate that s 109F(1A) was not in Part 4A as originally enacted, but was introduced by an amendment to the EPA Act in 2005 (see at [164] above). It appears (from Departmental Planning Circular PS 06-004 issued by the New South Wales Department of Planning on 13 February 2006) that the enactment of s 109F(1A) was a response to Marvan Properties Pty Ltd v Randwick City Council [2005] NSWLEC 9; 138 LGERA 1. In that case, Talbot J held that a council had power to issue a construction certificate after work on a development had commenced, notwithstanding that s 81A(2)(a) of the EPA Act prohibits the commencement of work unless a construction certificate has been issued. His Honour considered (at [34]) that it would be "anomalous" if plans and specifications that were otherwise capable of certification could not be certified because some nominal work on the development had already taken place. However, he also said (at [35]) that this conclusion did not absolve an applicant from any civil or criminal consequences that might flow from a breach of s 81A(2).
170The significance of s 109F(1A) for present purposes is that Parliament has turned its attention to the consequences of a construction certificate being issued in contravention of the EPA Act, specifically, s 81A(2). It has expressly provided that a construction certificate issued after work on a development has commenced is to be of "no effect". Yet as I have pointed out, Parliament has chosen to say nothing to indicate that a construction certificate issued in breach of requirements in the regulations should also be of no effect, notwithstanding that an "objective" standard for determining whether a construction certificate is consistent with the development consent was introduced after s 109F(1A) had been enacted.
171The statutory regime relating to construction certificates is to be contrasted with that applying to development consents. The validity of a development consent may be challenged on the ground that the consent authority has failed to comply with the requirements laid down by the EPA Act, for example in s 79C(1) (which specifies the matters to be taken into account by a consent authority in determining a development application). But s 101 of the EPA Act specifically provides that if public notice of the development consent has been given, the validity of the development consent cannot be challenged in any proceedings except those commenced in the L & E Court within three months. Parliament has therefore expressly recognised that the validity of a development consent may be challenged, but has imposed temporal constraints on the availability of any such challenge. By contrast, Parliament has not recognised that the validity of construction certificates may be challenged, except in the limited circumstances covered by s 109F(1A). (I leave to one side complications introduced by the constitutional entrenchment of the Supreme Court's jurisdiction to intervene in cases of "jurisdictional error": Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531).
172Thirdly, s 109F(1)(a) imposes a prohibition on the issue of a construction certificate that does not comply with the requirements of regulations made pursuant to the regulation-making power conferred by s 81A(5). That power extends to the making of regulations "concerning the issue of certificates for the erection of buildings". Regulations made pursuant to s 81A(5) might impose (and do in fact impose) a range of requirements, varying from the clearly important (such as cl 145) to the relatively trivial. It would be odd, for example, if a failure by an accredited certifier to adhere to the formal requirements for a construction certificate specified by cl 147 (such matters as accreditation number, date of the certificate and date of the development consent) resulted in the invalidity of the construction certificate. Similarly, it would be odd if a construction certificate is to be held invalid because the developer fails to comply with a condition of development consent of no real significance to the building work (see cl 146(c)).
173On the Council's argument, regardless of the significance of the requirements imposed by regulations made pursuant to s 81A(5), a construction certificate issued in breach of those requirements will be invalid. It is not possible to foresee the nature and extent of the requirements that might be inserted into the regulations from time to time. Consequently, the defaults in the issue of a construction certificate in a particular case may be "major or minor, deliberate or inadvertent, fundamental or marginal": Smith v Wyong Shire Council at [43]. It is difficult to conclude that the legislative purpose is served by treating a construction certificate as invalid if it issued otherwise than in compliance with the regulations, regardless of the nature or seriousness of the contravention.
174Fourthly, since s 109F(1)(a) of the EPA Act incorporates requirements laid down in the regulations, the validity of a construction certificate (on the Council's argument) may turn on the application of criteria expressed in vague language or which contemplates the making of a contestable judgment. In Project Blue Sky, the High Court observed (at [95]) that if the relevant requirement does not have a "rule-like quality which can be easily identified and applied", the better conclusion is ordinarily that the requirement goes to the administration of a power, rather than to its validity.
175Clause 145 of the EPA Regulation is an example of a standard which, although perhaps having a "rule-like quality", nonetheless involves the exercise of what Spigelman CJ described in Smith v Wyong Shire Council (at [22]) as an "inherently contestable" judgment. It is common, if not inevitable, that in a large scale project there will be some differences between the plans and specifications approved in a development consent and those furnished to the certifying authority responsible for issuing a construction certificate. As I have noted (at [148]), whether the differences amount to an inconsistency for the purposes of cl 145(1) might well be a difficult matter to resolve. It is not likely that the legislative scheme requires the validity of a construction certificate to depend on matters on which there is room for differing opinions.
176Fifthly, the Council's argument, if accepted, would produce inconvenient consequences. In Project Blue Sky (at [97]), the majority judgment said that:
"it is unlikely that it [is] a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act."
177I have referred to the possible consequences for a developer relying on a construction certificate apparently issued lawfully. Section 81A(2) prohibits the erection of a building in accordance with a development consent unless a construction certificate has been issued. If a construction certificate is issued but is invalid because of non-compliance with the regulations, the developer may well be in breach of s 81A(2) if he or she authorises building work to commence. This will be so even if the developer has acted in good faith and has no knowledge or even means of knowledge that the construction certificate has been issued in breach of the regulations. Similarly, if a construction certificate issued in breach of the regulations is invalid, the consequence (at least on the Council's submissions) is that a person who carries out development may breach s 76A(1)(b) of the EPA Act. This could occur, for example, if the construction certificate fails to comply with the formal requirements of the regulations.
178Another example of inconvenience arising from the invalidity of a construction certificate flows from the prohibition on a person commencing occupation or use of a new building unless an occupation certificate has been issued: s 109M(1). If the construction certificate issued by an accredited certifier is invalid because it does not comply with the regulations, the developer may not be able to obtain an occupation certificate. This is because s 109H(5)(b) of the EPA may well be interpreted to prohibit the issue of a final occupation certificate unless a valid construction certificate has been issued with respect to the plans and specifications for the building. If the developer has acted in good faith, the consequences of conduct by an accredited certifier beyond the developer's control or knowledge may be very serious and not only for the developer but for innocent third parties.
179Mr Hale countered these examples by identifying public inconvenience that would result if a construction certificate issued in breach of cl 145 of the EPA Regulation was valid. He pointed to the potential for an accredited certifier, whether through impropriety or incompetence, to circumvent the statutory scheme governing approval for the modification of a development consent: see s 96(2), (3). Mr Hale also submitted that if an accredited certifier can issue a valid construction certificate which departs from the terms of a development consent, the safety of members of the public might be jeopardised. He gave as an illustration the case of an accredited certifier endorsing plans and specifications that create an unacceptable fire hazard in a building.
180I accept that an accredited certifier who fails to comply with his or her statutory responsibilities might issue a construction certificate that facilitates the erection of a building that is inconsistent with the conditions of the development consent. However, the potential danger from impropriety or lack of competence arises because of a statutory scheme which, from the outset, has entrusted accredited certifiers (among others) with the power and duty to issue construction certificates.
181This danger was foreseen and addressed by Parliament in the same legislation that introduced Part 4A (including s 109F) into the EPA Act. The Amending Act 1997 inserted Part 4B of the EPA Act which established a regime for the accreditation of certifiers, the investigation of complaints against accredited certifiers and the imposition of disciplinary sanctions in cases of "unsatisfactory professional conduct" or "professional misconduct". Part 4B was repealed in 2005 and has been replaced by the more detailed regime in the BP Act governing accreditation, complaints and discipline and related matters (see [39]-[44] above).
182The statutory scheme suggests that Parliament has chosen to guard against the risk of accredited certifiers failing to comply with their statutory obligations by an accreditation and disciplinary regime, rather than by the blunt mechanism of rendering a non-complying construction certificate void. This conclusion is reinforced by the explanation given by the Minister in the Second Reading Speech for the Building Professionals Bill 2005:
"[t]he major benefits of the bill include the creation of uniform professional standards for private certifiers, a simpler regulatory system, and stronger measures to protect the safety and property of the public."
NSW Parl Deb, Legislative Assembly, 16 December 2005 (Hon D Beamer).
183If the validity of a construction certificate issued in breach of the EPA Act creates a risk to public health and safety, as Mr Hale submitted, that risk would lend weight to the argument that the purpose of the legislation requires a non-complying construction certificate to be invalid. However, as Mr Tomasetti pointed out, the EPA Act contains ample powers for a council or other consent authority to intervene when public health and safety is at risk, regardless of whether a development consent or construction certificate is in force. Section 121B of the EPA Act permits a consent authority to make orders, for example, requiring the owner of premises (and, in certain circumstances, other persons):
- to make repairs to a building that is likely to become a danger to the public: Table, item 4;
- to do such things as are specified to ensure adequate fire safety: Table, item 6; and
- to cease conducting an activity on premises (regardless of whether there is a development consent), if the activity is a threat to public health and safety and is not controlled or regulated under another Act: Table, item 8.
184It must also be borne in mind that a certifying authority must notify the consent authority and the council that a construction certificate is issued within two days of making the determination: EPA Regulation, cl 142(2) ([36] above). The consent authority and council receives not only the determination and the certificate issued, but the plans and specifications and any fire safety schedule. The recipient thus has the opportunity to scrutinise the construction certificate and accompanying documentation to determine whether there is a departure from the development consent or a risk to public safety that might warrant intervention and the invocation of statutory powers.