There is an extensive range of development that can be carried out pursuant to complying development certificates (CDCs), particularly under the State Environmental Planning Policy (Exempt & Complying Development Codes) 2008 (the Codes SEPP).
A limited discretionary merit assessment is undertaken for CDCs. The power to issue them is generally dependant on whether development meets prescribed development standards, which are often numerically stated.
Despite this, legal challenges to CDCs are not uncommon.
In one such challenge – a good illustration of a CDC “gone wrong” – the Land & Environment Court in Bankstown City Council v Ramahi (No2)  NSWLEC 34, declared CDCs invalid that were issued for a secondary dwelling at the rear of a suburban house in Condell Park.
The Court discussed some important principles relating to CDCs which would be of interest to anybody looking to carry out complying development.
In Ramahi, the secondary dwelling approved by the CDCs was simply too big to meet the necessary requirements to be complying development under the Codes SEPP.
It significantly exceeded the maximum permissible floor area of 60m2. The rear setback was 0.9 metres, a far cry from the required setback of 8 metres applying to dwellings of the two-storey height proposed. The side setback was 0.9 metres, short of the minimum requirement for a 1.7 metre setback.
The CDCs were challenged by the Council on that basis.
Amongst other arguments, the respondents sought to argue that the determination as to whether development complies with development standards “is a matter for the certifier and not for the Court by way of judicial review“. In reliance on the decision of Trives v Hornsby Shire Council  NSWCA 158, the respondents submitted that the Council was required to establish that each decision was irrational, a very high burden.
The Court disagreed, finding that CDCs may be set aside on the grounds that the certifier could not reasonably be satisfied that the development standards had been met in issuing the CDCs, and that they were therefore issued beyond power.
One of the CDCs subject to challenge was an approval for modified complying development and had been issued for work that had already been carried out. The Court considered the power to issue a CDC in such circumstances and held that CDCs and approvals to modify a CDC cannot be issued for works that have already been carried out.
Having regard to the adverse environmental impacts of the development and the need to uphold the integrity of the system of planning control, the Court ordered the owner of the property to partially demolish the secondary dwelling to bring it into line with the requirements under the Codes SEPP.
Points to be taken
Whilst the decision may seem a predictable outcome in the face of the clear and significant non-compliance with development standards, there are a number of points of interest which can be taken from the judgment:
- The Court is empowered to go behind the decisions of certifiers to approve complying development and find that those determinations are invalid where mandatory development standards have not been met and there is no reasonable justification for the departure from those standards. The higher burden of establishing that the decision to issue a CDC was irrational does not apply in this context;
- CDCs and approvals to modify CDCs cannot be issued for works that have already been carried out; and
- Subject to consideration of discretionary matters, the Court is empowered to order the demolition of works that have been carried out pursuant to CDCs that are subsequently rendered invalid. The fact that an owner or developer relies on a CDC in carrying out development at the time does not absolve them of responsibility for development that was not and could not be complying development.
This article was written by Jane Hewitt, Partner and Tom Messenger, Associate