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  • The Court of Appeal in Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 decided that inconsistency between a development consent and a construction certificate does not make the construction certificate invalid.
  • The Court of Appeal in Trives v Hornsby Shire Council [2015] NSWCA 158 held that a complying development will not be invalid merely because the Court takes a different view from the certifier of whether or not the development is in fact complying development.

Certificates under Part 4A of the Environmental Planning and Assessment Act 1979 (‘the Act’) can be issued by local government, state agencies or accredited certifiers. The concept of private certification was introduced into the Act in 1998 as part of a suite of reforms designed to speed up approval processes by allowing some technical assessment functions to be carried out by the private sector.

An important safeguard in this regime is that accredited certifiers are only empowered to certify technical compliance. In his second reading speech introducing the reforms, Minister Craig Knowles said that private certifiers would ‘not have the opportunity to make significant discretionary judgments where impact assessment is necessary’ (Hansard, 15 October 1997).

However, two recent decisions in the Court of Appeal have curtailed the grounds on which certificates can be set aside in judicial review proceedings. These decisions will make it difficult for consent authorities and others to challenge contestable decisions made by private certifiers in the future.

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