Posted on May 5, 2016 by
Challenging CDCs – An update
LTL has regularly posted on decisions of the Land and Environment Court involving enforcement proceedings brought by councils seeking to set aside complying development certificates (CDC) issued by private certifiers. In the recent decision of Craig J in Bankstown City Council v Ramahi (No 2)  NSWLEC 34, the Council were successful in obtaining demolition orders in respect of CDCs unlawfully issued by a private certifier. Craig J also held that an application to amend a CDC cannot be granted in respect of development that has already been constructed.
Ramahi principally involved three CDCs issued for a two-storey secondary dwelling and attached garage under the State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP).
The first CDC was non-compliant and held to be invalid because, at the very least, the secondary dwelling and attached garage did not meet the setback requirements set out in clauses 10(1) of Sch 1 to the ARH SEPP.
A second CDC, was similarly non-compliant and also failed to meet the setback requirements of clause 9(2) of the ARH SEPP. The rear and side setbacks as certified by the CDC were plainly non-compliant because of the height of the secondary dwelling. In particular, the approved height of the secondary dwelling would have required a rear setback of 8m, whereas a setback of 0.9m was provided for and certified as complying.
A third CDC was issued which purported to approve a much lower skillion roof for the secondary dwelling. At the time of its issue, substantial building works had been completed including the framing for the roof. This CDC was also held to be invalid because the rear setback requirements were still not met.
Much of the argument surrounding the lawfulness of the issue of the CDCs focused on the decision of the Court of Appeal in Trives v Hornsby Shire Council  NSWCA 158. The respondents argued that the effect of this decision was that it was a matter for the certifier, not the Court, to determine whether development was complying development.
Craig J rejected this argument, adopting the approach that was taken by Biscoe J in Hornsby Shire Council v Trives (No 3)  NSWLEC 190, namely, that when issuing a CDC a certifier must be satisfied that the development is ‘complying development’ within the meaning of the relevant environmental planning instrument, and that state of satisfaction must be one that could be formed by a reasonable person who correctly understood the meaning of the law.
A further finding made by Craig J is significant. In the present case, both the second and third CDCs were issued as modifications under the power contained in s87 of the Environmental Planning and Assessment Act 1979. The third CDC, which purported to alter the roof form, was issued at a time when the framing for the roof had already been completed. Craig J held that a CDC cannot be issued for development that has already been carried out, including a modification to a CDC under s87 of the EPA Act. A modification of a CDC is unlike a modification application under s96 of the EPA Act, which can be issued in respect of development that has already been carried out.
As a result of the invalidly issued CDCs, Craig J ordered, amongst other things, the demolition of the roof of the secondary dwelling, the demolition of the attached garage and its reinstatement as private open space. The effect of the orders is that once the rectification works are carried out, the secondary dwelling will be brought into conformity with the development standards for complying development set out in Sch 1 of the ARH SEPP.