Posted on April 26, 2016 by Megan Hawley
Complying Development and Development Consents
The Land & Environment Court has considered yet another case regarding the validity of a complying development certificate (CDC), this time involving an alleged failure to consider the terms of an existing development consent when determining whether the relevant development was complying development.
In Mosman Municipal Council v IPM Pty Ltd, the Land & Environment Court considered the validity of a CDC issued in respect of works for an internal tenancy at premises which were the subject of a development consent.
The development was development of a type described in clause 5.1 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) as complying development, as it constituted internal alterations to a retail building the subject of a development consent. The development standards specified for such development in the Codes SEPP, included that carparking must be provided in accordance with any existing consent or relevant requirements of planning controls applying to the land.
The Court confirmed that consideration of compliance with the development standards in the Codes SEPP is a mandatory consideration when determining whether development is complying development, and therefore consideration of the conditions of the existing consent regarding car parking was mandatory. The Court found that the existing consent had been considered.
The next question was therefore whether the development the subject of the CDC met the development standard regarding parking, or breached the conditions of the existing consent regarding car parking.
The Codes SEPP prescribes conditions to be attached to all CDCs. One condition is in regard to car parking. It was argued that this condition, if complied with, would result in a breach of the condition of the existing consent regarding carparking.
However the Court held that when the condition of the CDC was properly interpreted, there was no conflict. Her Honour reached this conclusion for a number of reasons, but noted that the standard conditions to be applied to all CDCs should be construed in a manner that promotes harmony with an existing consent, and avoids conflict.
Ultimately the Court found there was no conflict between the conditions, and that the development was properly considered to be complying development and the CDC was properly issued.
The case highlights the importance of certifiers properly undertaking the task of determining whether development is complying development. This task does not end with finding a type of complying development in the Codes SEPP which would encompass the particular development. The task involves consideration of compliance with development standards specified for the development and the general requirements for complying development in the Codes SEPP. It also requires a consideration of the standard conditions which will be imposed as part of the CDC to determine whether those standard conditions would effect the ability of the development to meet the relevant development standards.
The case can be found here.