In the recent decision of Wollondilly Shire Council v Kennedy [2023] NSWLEC 53 the Land and Environment Court has held that the failure by a certifier or consent authority to include the 'purpose' of development in a Complying Development Certificate could render that certificate invalid.
Implications
- A complying development certificate can only be issued for a permitted purpose.
- Certifiers and consent authorities should take all necessary steps to satisfy themselves that the development is complying before issuing a complying development certificate.
- The issuance of a complying development certificate does not protect a landowner from proceedings commenced by council to declare that complying development certificate invalid.
Background
On 28 October 2021, a certifier issued a complying development certificate (CDC) to a landowner, authorising the construction of a 'detached shed' on land located in Cawdor, NSW. The proposed shed, with an area of almost 1,400 m2, was intended by the landowner to be used to store his car collection. However, the certifier was not aware of the landowner's intention in this regard. Following a complaint by a neighbour during the construction of the shed, the local council sent an officer to investigate.
The Council commenced proceedings in the Land and Environment Court challenging the validity of the CDC on numerous grounds. Of particular note, the Council alleged that the CDC purported to authorise the carrying out of development which was not considered complying development within the meaning of cl 3A.5 of Part 3A 'Rural Housing Code' of the State Environmental Planning Policy (Exempt and Complying Development Code) 2008 (NSW) (Codes SEPP).
This was on the basis that the CDC did not identify the purpose for the shed and accordingly the development purported to be approved by the CDC could not be characterised as complying development which may be carried out on the land for the purpose of s 4.6 of the EPA Act and the Codes SEPP.
How to Construe the CDC
The Court firstly had to consider the proper manner in which to construe the CDC. In doing so, Pain J made the following comments and findings:
- (1) Development consent, as defined by s 1.4 of the EPA Act, includes a CDC unless expressly excluded.
- (2) A CDC operates in rem and its terms should be clear on its face, or at the most, by reference to documents otherwise incorporated into it, in limited circumstances [45].
- (3) Extrinsic evidence, such as conversations and emails between people before a CDC is issued cannot assist in construing a CDC [46].
For further information please contact:
Chloe Howard, Associate
Phone: +61 2 9777 8342
Email: cxh@swaab.com.au
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