Thinking | 21 December 2015
Another visit on certifiers’ powers – This time it’s their obligation
Part 4, Division 3 of the Environmental Planning and Assessment Act 1979 (Act) identifies that an accredited certifier may issue a complying development certificate (CDC), permitting development to be carried out without consent.
The question before the Land and Environment Court of NSW in this matter was whether three CDCs issued for the erection of structures certified as complying development and characterised as “detached studios” on three residential properties was valid.
The CDCs were purportedly issued pursuant to the State Environmental Planning Policy (Exempt and Complying Development) Codes 2008 (SEPP).
Three residential properties, located at Epping, Carlingford and Hornsby, had what was characterised as “detached studios” on the properties. The area was zoned R2 Low Density Residential under the Hornsby Local Environmental Plan 2013 (LEP).
The accredited certifier, Simon Trives was the first respondent (First Respondent), and the owners of each property were the second and third respondents.
Hornsby Shire Council was the applicant in these proceedings (Council). Council contended that the proposed developments were not detached studios as defined in the relevant planning instrument.
The parties raised a separate question for determination in the Land and Environment Court, which was whether the characterisation of the proposed development as complying development was a matter to be determined by the Court, or whether the certifier’s opinion was conclusive.
Decision at first instance
In Hornsby Shire Council v Trives  NSWLEC 171, Craig J found in favour of the Council.
His Honour reasoned that, on the correct interpretation of the SEPP and LEP, the proposed development on each lot was not complying development or a detached studio because:
- it was not ancillary to the existing dwelling, as required by the SEPP;
- it was not permissible within the R2 zone, as required by the LEP; and
- there will only be one dwelling house at the completion of the development, which was not permissible under the SEPP.
Decision at appeal
The First Respondent lodged an interlocutory appeal.
In the Court of Appeal, Basten JA, with whom Macfarlan and Meagher JJA agreed) upheld the appeal, and found that the characterisation of the development depended on the certifier’s opinion.
However, the Court of Appeal held that on judicial review, it could not decide whether the proposed development was complying development as an objective jurisdictional fact, but could only decide whether the certifier could have reasonably held the opinion that the proposed studios were complying development on the correct interpretation of the SEPP and LEP.
Therefore, the Court of Appeal remitted the proceedings to the Land and Environment Court, pursuant to s85A(3) of the Act.
Biscoe J found that in each CDC, the First Respondent had certified that the proposed development was complying development, suggesting that the First Respondent was satisfied that the proposed development was complying development.
The Court looked at all the relevant definitions, including that of “detached studio”, “secondary dwelling”, “habitable room” and “dual occupancy.”
His Honour concluded that on the correct interpretation of the SEPP and LEP, each of the proposed structures could not be characterised as complying development or as a detached studio because it did not comply with the following requirements of the SEPP, and any contrary opinion by the First Respondent was unreasonable:
- it was not ancillary to the existing dwelling;
- it was not established “in conjunction with a dwelling house” and therefore was not within the definition of a “detached studio”;
- it resulted in there being “more than one dwelling house”; and
- it was not “permissible with consent” in the RU2 zone, because under the LEP the Epping and Carlingford structures were dual-occupancy or secondary dwellings and the Hornsby structure was multi-dwelling housing, all of which are prohibited under the LEP.
The decision does not change the certifier’s fundamental obligations. Before issuing a CDC, a certifier must form the opinion that the development is complying development. Certifiers who fail to perform their obligations honestly may be subject to disciplinary action, or their decision may be able to be set aside because of the absence of a genuine opinion, or other administrative law grounds of review.
However, this decision has put a major obstacle in the way of consent authorities challenging contestable judgments by certifiers about the limits of their own powers, including the power to permit variations to plans between consent and construction, and the power to grant a CDC where the characterisation of the development as complying development is debatable.
Therefore, this case highlights the importance for certifiers to perform their obligations and leaves almost no room for error when it comes to certifies forming the opinion that the development is complying development.
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