The recently reformed Environmental Planning & Assessment Act 1979 (the Act) continues to be rolled out over the first half of 2018. As well as the other amendments aforementioned in our previous article, one of the major changes to the Act is with regard to the increased powers given to Local Councils and Courts when dealing with complying development certificates for local development applications.
In order to achieve the NSW Government’s primary purpose “to promote confidence in our state’s planning system”, the Act aims to enable Local Councils and Courts to adequately and appropriately deal with developments and their relative certificates with more ease by granting them increased powers in this area.
Below is an outline of the major increases/changes in powers issued to Local Councils and Courts:
Powers to suspend work under a complying development certificate
Under the new amendments, Councils will have new investigative powers to suspend work under a complying development certificate for up to 7 days. Due to the generally fast paced nature of Complying developments, Council authorities have often found it difficult in using their current enforcement powers to ensure that improper or flawed complying developments are not being built. This new amendment seeks to address this issue, as it allows Councils to completely suspend works on a site while the 7 day investigative period happens, ensuring that they are able to fully exercise their enforcement options with regard to complying developments.
Validity of complying development certificates
Up until this point, Courts have been limited in their ability to invalidate complying development certificates. Generally speaking, the Courts have been bound by the Court of Appeal case Trives v Hornsby Shire Council [2015] NSWCA 158 which held that characterisation of complying development could only be made by the certifier, and that the Court could not look into this matter as a question of “jurisdictional fact”. The new amendments seek to address the somewhat limited scope of the Courts in this area. Under the amendments, the Court may now by order declare that a complying development certificate is invalid if:
- Proceedings for the order are brought within three months after the issue of certificate
- The certificate authorises the carrying out of development for which the Court determines that a complying development certificate is not authorised to be issued
Resulting from these changes, the Court now has the power to be able to objectively determine whether the complying development certificate is in accordance with the relevant Local Council Standards.
Validity of other certificates
Furthermore, the new amendments further aim to widen the scope in which Courts are able to deal with relevant development certificates. Under the new amendments, Courts are now also able to deal with the validity of construction, subdivision works, subdivision and compliance certificates. Similar to that of complying development certificates, Courts are now able to order construction, subdivision works, subdivision or compliance certificates invalid if:
- Proceedings for the order are brought within three months after the issue of the certificate
- The plans, specifications or standardss of work specified in the certificate are not consistent with the development consent for the building work or subdivision work
Despite this, it is also important to note that the new provision excludes the ability to seek an order with regard to the validity of an occupation certificate. Appeals in relation to occupation certificates will continue to be limited to being made by the applicant of the certificate.
