CDCs: check allowable land use & include prescribed conditions

Tuesday, 1 November, 2016
A certifier relied on a planning consultant's report to issue a CDC for work on land where complying development wasn't allowed. The CDC didn't include all prescribed conditions; instead, the certifier added an extra condition, not found in the legislation, that referenced the planner's report.

Lessons identified from this case

  • Referring to advice and reports from others is common practice, but don't just accept them without adequate scrutiny and a check of relevant legislative provisions.
  • Certifiers can't decide which environmental planning instrument to use to assess an application for a complying development certificate (CDC); the application must nominate this. If the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP), the application should nominate the specific code (e.g. Housing Alterations Code).
  • Cross-check the specific land use exemptions in the relevant SEPP with the zones in the Local Environmental Plan (LEP) to determine if a proposal can be carried out as complying development.
  • Certifiers have no authority to omit or add to prescribed conditions for CDCs. The Codes SEPP offers no discretion to exclude any condition from those listed in the relevant schedule. Conditions in the Environmental Planning and Assessment (EP&A) Regulation 2000 may or may not be applicable and conditions that aren't relevant to the development shouldn't be imposed.

Setting the scene: relevant legislative provisions

Environmental Planning and Assessment Act 1979

  • Section 85A(6)(a) requires a CDC to be issued unconditionally, or subject to conditions (to the extent required by the regulations, an environmental planning instrument or development control plan).

Environmental Planning and Assessment Regulation 2000

  • Clause 126(1)(a) requires an application for a CDC to include the information and documents specified in Part 2 of Schedule 1 of the Regulation.
    • Clause 3(g) of Part 2 of Schedule 1 requires a CDC to name the environmental planning instrument or development control plan under which the development is complying development.
  • Clause 134(1)(g) requires a CDC to include any conditions imposed under the Regulation.
  • Clause 134(1A)(a) requires a CDC issued under the Codes SEPP to specify the relevant land use zone.
  • Division 2A, Part 7 specifies conditions for complying development and the circumstances where they must be included on a CDC.

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

  • Clause 1.19 lists specific land exemptions where complying development cannot be carried out under the General Housing Code. These include land within a heritage conservation area or a river front area, as identified in an environmental planning instrument.
  • Clause 3.37 requires a CDC under the General Housing Code to be issued subject to the conditions specified in Schedule 6 of the SEPP.

Case details

A certifier issued a CDC for internal alterations to an existing dwelling, relying on a report from a planning consultant that complying development was permissible on the land if done in accordance with the recommendations in the report.

The details in the planner's report showed it was based on the provisions of the Housing Alterations Code of the Codes SEPP. The CDC application hadn't nominated the code under which it was to be assessed, and the certifier issued the CDC under the General Housing Code.

However, the LEP – and the planner's report – identified the land as within both a heritage conservation area and a river front area. Clause 1.19 of the Codes SEPP prohibits complying development under the General Housing Code in such areas.

CDC must include land use zone

The CDC didn't specify the land use zone. This was listed in the planner's report, which the CDC referred to.

While a CDC needs to refer to, and attach documents used to determine the application, the certificate itself (not just its referenced documents) must specify the land use zone.

Prescribed CDC conditions can't be added to

The CDC didn't include all the prescribed conditions for complying development. It omitted a condition for asbestos removal (EP&A Regulation clause 136E), and only included one of the 15 conditions prescribed in the Codes SEPP.

The CDC also included conditions for neighbour notification (EP&A Regulation clause 136AB) and BASIX-affected development (clause 136D) that didn't relate to the development.

Besides this, the certifier added a condition requiring compliance with the planning report recommendations (referred to as 'conditions' on the CDC). This report referred the reader to the Codes SEPP schedule, which lists the conditions, and didn't actually list each condition.

What happened next?

The council issued a stop work order relating to the works approved under the CDC plus unauthorised external renovations being carried out at the same time.

The council advised that the CDC would likely be declared invalid if the matter was heard in the Land and Environment Court, and recommended that the certifier withdraw the CDC (which was done).

The Board's findings

Much of the council's concern over the development related to the unauthorised work, not just that approved by the CDC.

By imposing the extra condition on the CDC, the certifier felt he had acted diligently by referring the applicant to the recommendations in the planner's report. He had also voluntarily withdrawn the CDC as recommended by the council.

In light of these considerations, the Board formally cautioned the certifier but didn't impose a fine. It advised the certifier that, should a similar matter arise, the Board would exercise a firmer decision.

In conclusion

Certifiers regularly receive advice from non-accredited professionals, but should only accept it after scrutinising it and checking relevant statutory provisions.

The certifier didn't adequately check the details in the planner's report or the LEP to determine whether the proposed development could be carried out as complying development, having regard to the land use exemptions that applied to the General Housing Code.

He also accepted a CDC application which didn't nominate an environmental planning instrument for assessing it, and overstepped his authority by deciding which instrument to apply.

The certifier used discretion when including conditions on the CDC, but in the wrong way. He omitted most of the conditions prescribed by the Codes SEPP (where omissions weren't an option), while at the same time including certain conditions under the EP&A Regulation that weren't applicable, and an extra condition not found in any environmental planning instrument.

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