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Planning Law South Australia

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Insights | Planning Law: Developers Carry the Can

APRIL 2018

  • Developers are responsible for ensuring all consents and approvals are in place before development commences
  • Developers, council staff and private certifiers must all pay attention, it is not sufficient to assume apparent documents are correctly issued.

His Honour Judge Costello recently sentenced a property developer following prosecution for undertaking unauthorised development. It is a lesson to developers that they are responsible for obtaining relevant consents, even though staff or agents may be involved.

City of Onkaparinga v Iform Group P/L & Anor [2018] SAERDC 16.

The facts are somewhat complex, with a case of forged documents asserting that consent and approval had been granted. The company and its sole director were charged with performing unauthorised development and failing to give notice of commencement of building work. The director was an experienced property developer and builder.

A building design firm was engaged to do conceptual drawings for the purpose of planning consent. The firm acted as agent of the developer, lodging development applications (DAs) for 14 dwellings on the 14 allotments of a new subdivision.

A designer employed by the design firm sent unsigned documents to the developer purporting to be planning consents, accompanied by copies of plans apparently stamped by the council, and a covering email appearing to come from the council planning section. These were all forged. The developer company and director were not involved in, nor knew of the forgeries.

The design firm lodged the consents with a private certifier for building rules consent. The private certifier notified the council of his engagement, this in itself did not raise any alarms.

In due course, the private certifier granted building consent. He arranged delivery by courier of a package of all consents and plans to the council. The package was delivered and received, but then the council had no further record of it. At this time the building consents were also sent to the developer, there was no final development approval issued. The developer knew that a development approval was needed. No enquiry was made.

Later, the designer also forged four development approvals (unsigned documents); the developer made no enquiry about the other ten approvals.

Meanwhile, the council planner was assessing and processing the DAs, and communicating with the designer. Six months after the forged approvals, the council became aware that building work had commenced.

Once the council was aware, it issued enforcement notices to stop work. Eventually development approvals were obtained for all dwellings.

On their pleas of guilty, His Honour convicted the company and its director. He noted:

  • the director was a very experienced builder
  • it was a big project involving the construction of 14 dwellings
  • the director was not part of the fraud perpetrated
  • the director did not actually see any of the development approvals
  • he did not make any enquiries about the further approvals
  • approval for building work is very important, there are good reasons why it is necessary
  • it was up to the director (and his company) to comply with the Act
  • there was no excuse for commencing building work without approval
  • the approach of leaving matters to others compounded the mistaken belief that approvals had been granted
  • he did not pay sufficient attention to the receipt of approval, the forged consents contained obvious flaws

The director was fined $24,000 plus costs and levies.

If you would like further information on this topic, please contact one of our specialist planning practitioners below.

Disclaimer

The content of this newsletter is for general information purposes only and should in no way be treated as formal legal advice.