Posted on December 4, 2019 by Megan Hawley and 1

Challenging CDCs – The Case Law Continues

In the recent decision of Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (N0 2) [2019] NSWLEC 171 (‘Gindurra‘), the Land and Environment Court further considered challenges to the validity of complying development certificates (‘CDCs’) in light of s4.31 of the Environmental Planning and Assessment Act 1979 (‘EPA Act‘), which was first inserted into the EPA Act in March 2018, and s4.59 of the EPA Act, which purports to limit the time period within which challenges to development consents and CDCs can be commenced.

In Gindurra, the Council challenged the validity of a number of CDCs and the Court declared those CDCs to be invalid and of no effect.

Section 4.31 and s4.59 of the EPA Act 

Section 4.31 of the EPA Act has been in force since 1 March 2018. It was enacted as a consequence of the Court of Appeal’s decision in Trives v Hornsby Shire Council [2015] NSWCA 158 (‘Trives‘). In Trives, the Court determined that the characterisation of development as ‘complying development‘ was not something which could be reviewed by the Court.

The section was included in the EPA Act to remedy the effect of that decision and provide scope to challenge CDCs issued for development which might not properly be considered to be complying development.

Section 4.31 of the EPA Act provides as follows:

Without limiting the powers of the Court under section 9.46(1), the Court may by order under that section declare that a complying development certificate is invalid if-

(a) proceedings for the order are brought within 3 months after the issue of the certificate, and 

(b) the certificate authorises the carrying out of development for which the Court determines that a complying development certificate is not authorised to be issued.  

Section 4.59 (formerly s101) of the EPA Act has been in force since 1 July 1998, and applies to both development consents and CDCs. It provides that a challenge to a consent or CDC must be commenced within 3 months of public notification of the development consent or CDC in accordance with cl6, cl124 and cl137 of the Environmental Planning And Assessment Regulation 2000 (‘EPA Regulation‘), as relevant. Clause 137 of the EPA Regulation sets out the public notification requirements for CDCs in particular.

Section 4.59 of the EPA Act provides as follows:

If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or a certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given. 

The operation of s4.31 of  the EPA Act 

The Respondent in Gindurra (being the recipient of the CDCs) argued that s4.31 of the EPA Act excluded judicial review of the CDCs, including the review of whether the certifier reached the requisite state of satisfaction to issue a CDC.

The Court held that s4.31 does not exclude judicial review of CDCs. Instead, s4.31 confers an additional power on the Court to directly consider whether development is complying development such that the issue of a CDC is authorised, over and above the power to review a CDC on usual judicial review grounds, such as the certifier being satisfied of relevant matters. This additional power is available in proceedings commenced after 1 March 2018, but only where those proceedings are commenced within 3 months of the date of the issue of the relevant CDC.

At paragraph [46], the Court stated that s4.31 ‘is intended to expand the power of the Court to review CDCs for a three month period from the date of issue, not limit the power of judicial review of CDCs generally’.

The operation of s4.59 of the EPA Act

Regarding the operation of s4.59 of the EPA Act, the Respondent in Gindurra argued that the fact that public notice of the issue of the CDC was not given by the Council or the accredited certifier was irrelevant, as the identity of who transmits a public notice for the purposes of s4.59 of the EPA Act does not matter and the requirements for public notice in the EPA Regulation focus on public notice ‘being given, not who it is given by‘ (see paragraph [37]).

This argument was bound to fail both due to the reference in s4.59 to notice being given ‘by a consent authority or a certifier’ and because cl137(1)(a) of the EPA Regulation provides that a CDC is publicly notified for the purposes of s4.59 ‘if public notice in a local newspaper is given by the council or an accredited certifier.’

Unsurprisingly, the Court interpreted cl137 of the EPA Regulation as having ‘its ordinary meaning such that a public notice must be given by the council or certifier’ (see paragraph [59]).

The Gindurra decision can be read here.

Our earlier blog on the Trives decision can be read here.

To discuss this blog, please contact Megan Hawley, Partner on 02 8235 9703 or Sophia Urlich, Lawyer on 02 8235 9708.