Councils obliged to accept decisions of private certifiers – Cairo v Norwood, Payneham & St Peters [2018] SAERDC 11

The ERD Court has ruled that councils are obliged under the Development Act to accept planning consents and building rules consents issued by private certifiers.
Mr Cairo obtained development plan consent from a private certifier for existing works that were, in the opinion of the certifier, Residential Code complying alterations to two semi-detached dwellings. He then obtained building rules consent for the works from another certifier.
The Council refused to issue development approval, asserting that the works were not a complying development and the planning consent and building rules consents issued by the certifiers were invalid as a result.
The Court held that the Council was wrong in its assertion about the status of the development and found that they were complying in accordance with the certifiers’ decisions.  The Court also held that sections 35(6) and 36(5) of the Development Act oblige a Council to accept a decision of a private certifier.
It is only where a certifier truly acts beyond his or her jurisdiction that a consent issued by the certifier can be invalid.  The Council is bound to accept the certificate, but is entitled to take proceedings to have the decision of the certifier overturned for jurisdictional error.
The case makes it clear that the decisions of private certifiers can not be easily interfered with.
The exercise of power by certifiers often involves forming opinions and making subjective decisions, such as whether a variation is “minor”.  In Cairo, the Court held that a decision resting on the opinion of a certifier will only be overturned by the Court where it is “so illogical or irrational such that no rational or logical decision-maker could have formed that opinion”. This is a high bar.
As a result, it appears that a council can challenge a decision where a certifier has acted outside or beyond their jurisdiction.  However, where a council merely disagrees with an opinion of a certifier, that decision can only be overturned when a Court finds that the opinion is so illogical or irrational such that no rational or logical decision-maker could have formed that opinion.
It was argued by the Council that as the works had already been undertaken, the proposed development did not as a matter of fact involve an alteration to an existing dwelling – no further work was actually proposed. The Court approached the matter as if the works had not been done, and held that the proposal involved an alteration to the dwellings as a matter of law, there being no approval for the as-constructed state. The certifiers were correct to treat the proposal as an alteration to existing dwellings as a matter of law notwithstanding that no further works were actually proposed as a matter of fact.
The Court ultimately made an order directing the Council to issue development approval.
It is not known whether the Council will appeal the decision.
For further information please contact Tom Game on 8212 9777.