Posted on March 19, 2020 by Anzer Khan and Carlo Zoppo
The issuing of a Building Information Certificate on Community Titled Land
The Land and Environment Court has recently considered whether land regulated by a Community Management Scheme (“CMS”) can be the subject of a building information certificate (“BIC”) to regularise unlawful development that contravenes the by-laws of the CMS.
In this matter the applicants sought the issue of a BIC for a number of buildings that were ancillary to the dwelling house and constructed without development consent. The buildings included a garage, a greenhouse, a gazebo and a shed (“the structures”). The applicants lodged the BIC application with Queanbeyan-Palerang Regional Council (“Council”) on 18 December 2018.
The structures were located on a community title subdivision and subject to a CMS. The CMS contained by-laws, which, restricted certain buildings from being constructed beyond the boundaries of building envelopes. The building envelopes were indicated on the plans of each lot within the community scheme. All of the unlawful structures were built beyond the building envelope boundaries.
On 13 February 2019, Council resolved to take no action with respect to the BIC application.
The applicants lodged an appeal against the Council failing to issue the BIC within the period prescribed by the regulations.
On the hearing of the appeal, Council submitted that the granting of the BIC should not be granted because the structures had been:
- constructed without development consent; and
- constructed outside the boundaries of the building envelope as stipulated in the CMS.
Construction without development consent and outside the building envelope
A Council officer inspected the structures and formed the opinion that the structures were structurally sound and recommended that the BIC application be issued. Although Council accepted that there were no environmental or planning issues that would warrant refusal of a notional development application, Council resolved to “take no action in this matter” due to the issues surrounding the CMS by-laws and the operation of cl 1.9A of the Queanbeyan Local Environmental Plan 2012 (“QLEP”).
The Court held that Council’s position expressed in its letter to the applicants that “no enforcement action will be taken (if these structures remain unaltered)”, was consistent with s 6.25(1)(b) of the Environmental Planning and Assessment Act 1979 (“EPA Act“) which provides that there may be a matter discernible by the exercise of reasonable care and skill that would entitle council to issue an order or take proceedings to demolish the structures, but in the circumstances, council does not propose to make any such order or take any such proceedings.
The Court also noted that the Council agreed [at 51] “that each of the structures are structurally sound and that no planning issues arise from their construction. That is, there is no evidence whatsoever of any potential adverse environmental or amenity impact caused by their existence”.
The Court noted that the CMS by-laws stated that the building envelopes may be varied with the consent of the Council and the unanimous consent of the Community Association.
Relying upon the by-laws, Council submitted that in the absence of a unanimous approval of the Community Association, the BIC could not be issued where the structures were located outside the boundaries of the building envelope (discussed in detail below).
The Council submitted that where the structures were built without development approval, it would cause an undesirable precedent for development in the area. The Court rejected this argument, stating that the issue of a BIC would not “preclude either other lot owners, or the Community Association, from taking action to enforce the by-laws in the CMS.”
In exercising the functions of a Council under s 8.25(3) of the EPA Act, the Court has variously referred to the consideration of a BIC application as a “hypothetical or notional development application” (see Taipan Holdings Pty Ltd v Sutherland Shire Council  NSWLEC 276).
Council submitted cl 1.9A of the QLEP presented a jurisdictional bar to the grant of consent for buildings outside of the building envelope as the restriction concerning building envelopes in the CMS was imposed by Council as a condition of consent for the community subdivision. Clause 1.9A provides:
“(1) For the purpose of enabling development on land in any zone to be carried out in accordance with this Plan or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose.
(2) This clause does not apply—
(a) to a covenant imposed by the Council or that the Council requires to be imposed…” [our emphasis]
In support of the view that Council could not issue a BIC due to the Council imposed CMS, Council relied upon the decision of Robson J in Wenli Wang v North Sydney Council  NSWLEC 122, in which the operation of a covenant on title restricting the height of development was considered. His Honour in that decision stated (at ):
“The existence and effect of the covenant was a matter of significant concern both to Council and a number of the objectors. It is agreed that the proposed development does not comply with the terms of the covenant. If there were no statutory instrument setting it aside, the covenant would be a jurisdictional bar to the Court upholding the appeal.”
Although Council conceded that the Court has the discretion not to impose the covenant pursuant to s 39(2) of the Land and Environment Court Act 1979, Council submitted that the intention of the CMS and the integrity of the estate would be affected if the covenant was not imposed.
In rejecting that a jurisdictional bar existed, the Court relied upon the fact that Council has the power to expand building envelopes to incorporate other structures. No part of the CMS or by-laws required the unanimous consent of the Community Association prior to the grant of a development consent and furthermore, the CMS does not prevent any lodgement, assessment or determination of a development application for the expansion of the building envelope.
In making its decision that a BIC should be issued, the Court held that it was appropriate to direct Council to issue a BIC with respect to the structures.
The matters that were determinative in this matter were the:
- Council’s decision not to take any enforcement action; and
- the absence of any planning issues or any concerns about the structural integrity of any of the unlawfully erected structures.
The Court rejected the suggestion that there was a jurisdictional bar as the Council has, in considering a development application, the powers to consider expanding the building envelope to encapsulate the unlawful structures.
The full decision can be found here
If you would like to discuss this post or any matter, please contact Carlo Zoppo on 8235 9705 or Anzer Khan on 8235 9717.