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We would like to acknowledge the contribution of Carlo Zoppo in the preparation of this article.

In Wollondilly Shire Council v Kennedy [2023] NSWLEC 53, the Land and Environment Court (Court) has for the first time used the power available to it under s 4.31 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).  In this case, the Court made a declaration that the Complying Development Certificate (CDC) issued by the Fourth Respondent (Certifier) to the First Respondent (Kennedy) was invalid.  This case provides some useful guidance to Councils seeking to make similar applications with respect to CDCs.

In this case the Wollondilly Shire Council (Council) relied on 7 grounds, with 6 of the 7 grounds being based on the s 4.31 challenge and the remaining ground comprising judicial review. All 7 grounds relied upon by Council were successful. 

Section 4.31

Section 4.31 provides any person (including a Council) with the power to initiate Court proceedings to review the issue of a CDC. The power does not detract from the other powers that a Council may have but it enables the Council to commence proceedings to have the Court directly review the matters about which a certifier must be satisfied as jurisdictional facts (as opposed to indirectly review a certifier’s state of satisfaction).  

In her judgment (at paragraphs 87 and 90), Justice Pain comments on the broad nature of s 4.31, noting that it provides “a relatively unconstrained power to the Court”.  Pain J identifies that because of the “width of the statutory language in s 4.31 [which] …refers to the present tense ‘is’, it appears open to the Court to receive material relevant to the question of authorisation up to the time the Court makes a decision”.  This power does not exist anywhere else in the EP&A Act.  In this matter the CDC purported to grant approval for the “Construction of a Detached Shed” measuring 23 metres wide 60 metres long and between 3.7 metres and 5.4 metres high.  The Respondents argued that the structure was ancillary to the use of a dwelling pursuant to s 3A.5 of Part 3A ‘Rural Housing Code’ of the State Environmental Planning Policy (Exempt and Complying Development) 2008 (NSW) (Codes SEPP).

The facts

On 28 October 2021, the Certifier issued complying development certificate 1230/01 (the CDC) to one of the owners of the land (the First Respondent).  The CDC purported to authorise the carrying out of development on the land described in the CDC as “Construction of a Detached Shed”.  While the CDC was issued with an attachment setting out some conditions, the documents attached were limited to plans, and did not expressly include the conditions specified in Sch 6 of Codes SEPP.

On 17 November 2021, Council inspected the shed in response to a complaint made by a member of the public.  At that inspection, Council confirmed that the construction of the perimeter foundations and piers for the shed had commenced, however the works were found to be inconsistent with that which was approved under the CDC, in that the foundations were larger and were also oriented differently.  Ultimately, as the owner did not accept the suggestions of the Council to surrender the CDC, so the Council commenced a challenge relying on s 4.31 of the EPA Act, within the statutory limitation period of three months of the issue of the CDC.

In his evidence, Kennedy (part owner of the land and First Respondent) told the Court that he did not intend to use the shed for commercial purposes, rather, it would be used to store part of his large collection of historic trucks, cars, and motorbikes.

In Ground 1 Council argued that the CDC did not identify the purpose of the shed, and accordingly, the development could not be characterised as complying development.  Mr Kennedy argued that the only relevant inquiry to be made was whether the shed was ancillary to the dwelling house. Justice Pain found that “only the CDC and application can be relied on to construe the CDC in the circumstances of this case and these did not provide an indication of the intended purpose of the shed”.

In Ground 2 Council argued that the Certifier’s determination that the CDC was for complying development was unreasonable.  This argument follows the reasons set out in the decision in Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190.  The question for the Certifier was twofold – firstly whether the shed was ancillary to the dwelling house, and secondly, whether the proposed purpose of the shed was permissible within the RU1 zone.  The Court found that the Certifier was unreasonable in not considering the purpose of the shed.

In considering Grounds 3-5, the Court determined that it could receive and consider material relevant to the question of authorisation up until the Court makes a decision.  Justice Pain found that she was not limited to the evidence that was used to arrive at her conclusion in Ground 1. This was because “Grounds 3-5 address different questions and do require characterisation of the intended use of the shed and evaluation of the matters in s 4.28(3). Relevant statements made after the CDC was issued which inform such questions are not precluded in my view by my finding on ground 1”.

Council’s argument for both Grounds 3 and 4 was that the proposed use of the shed was not subordinate to the use of the dwelling house, rather it was a separate independent use. Ground 3 asserted that the shed was for the impermissible purpose of a car park, and Ground 4 asserted that the shed was not ancillary to a dwelling house on the land due to its size and scale.  

Her Honour rejected the submissions of the Respondents in Grounds 3 and 4 and found that the circumstances of the case reflected the circumstances in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 as there would be two independent uses of the land.  Her Honour was of the view that the car park use was so large it was an independent use, which did not subserve the dwelling house.  She rejected the submission that the appropriate comparison was the whole of the land of which the shed occupied a relatively small percentage, commenting that “planning purpose(s) and consequential use(s) run with specific parcels of land. The planning system would lack certainty and coherence if the subjective intentions of the occupier of a house determined whether development is ancillary to a dwelling house”.

Council’s Ground 5 related to characterisation of classes of buildings under the National Construction Code (NCC).  Her Honour agreed with Council’s argument that the proposed use of the shed to house 39 vehicles was closer in nature to a Class 7a building (a car park) or Class 7b (storage building).  As such the shed did not fall within the definition of ‘ancillary development’ as it was not an ‘outbuilding’ within the type of Class 10a and could not be characterised as complying development.   

Ground 6 - failure to include conditions of CDC

It was agreed by all parties that the CDC did not include conditions, however the Respondents argued that the failure to include conditions did not invalidate the CDC.   Her Honour disagreed and found that there is a mandatory obligation to impose the conditions.  When issuing a CDC, under Schedule 6 of the Codes SEPP, cl 3A.39 is expressed in mandatory language “must”.  Council argued successfully that the requisite 17 conditions were important in ensuring environmental and amenity protection for neighbours.  Justice Pain found for the Council, stating that “the statutory scheme viewed as a whole imposes a mandatory obligation on a certifier to impose the conditions in Sch 6 and the failure to do so gives rise to invalidity of a CDC”.

Ground 7 - complying development certificate uncertain and lacks finality

The Court agreed with the final argument submitted by Council was that the CDC is uncertain and lacked finality, as there were conflicting heights shown for the shed in the architectural and structural plans and the CDC purported to approve plans, which were not correctly or precisely identified in the CDC. 

Key takeaways

This decision highlights a range of matters pertinent to the consideration of the validity of a CDC.  Challenges relying on s 4.31 (while time limited) provide an effective tool to review the validity of a CDC, avoiding the difficulties created by the decision of Trives in setting aside a CDC.  This decision also provides useful commentary on the characterisation of the intended purpose of development and whether it is truly “ancillary” to the dominant purpose  

If you require further information about the decision or any planning matter, please contact the author.


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