Broad scope of judicial review regarding a certifier’s decision to issue CDC’s

The Land and Environment Court (the Court) has recently confirmed the broad scope of judicial review available under section 4.31 of the Environmental Planning and Assessment Act 1979 (EP&A Act).

Taking into account the context which led to the enactment of section 4.31 of the EP&A Act on 1 March 2018, the Court has clarified that this provision enables the Court to directly review the matters which a principal certifying authority (certifier) must be satisfied of before issuing a Complying Development Certificate (CDC) as jurisdictional facts, in contrast to only being able to indirectly review a certifier’s state of satisfaction as to those matters.  

Validity of Complying Development Certificates subject to judicial review

For proceedings commenced after 1 March 2018, an additional power under section 4.31 of the EP&A Act is conferred on the Court to review the validity of CDCs, if the proceedings are commenced within three months of the date of the relevant CDC being issued.

Section 4.31 of the EP&A Act provides as follows:

4.31   Validity of complying development certificate

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.

In Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) [2019] NSWLEC 171, the Court was required to consider whether it was able to undertake a judicial review of a private certifier’s decision to issue three CDCs.

It was Council’s position in this case that three CDCs issued by a private certifier to 40 Gindurra Road Somersby Pty Ltd (the owner) in relation to a development site in Somersby were invalid and that the Court was able to make an order to that effect pursuant to section 4.31 of the EP&A Act. Council argued that it was “not open and it was legally unreasonable for the certifier to form the view that the proposed development was complying development or met the required development standards.”

In response, the owner contended that section 4.31 of the EP&A Act excluded judicial review, and that it was a privative clause which creates a discrete restriction on judicial review available with respect to CDCs. Following the approach taken by the Court of Appeal’s in Trives v Hornsby Shire Council [2015] 208 LGERA 361; [2015] NSWCA 158 (Trives (CA)), the Court clarified that while before the enactment of section 4.31 of the EP&A Act it was unable to consider whether a development is complying development as a jurisdictional fact (e.g. if the relevant requirements for complying development have been met), section 4.31 enables the Court to directly review the matters about which a certifier must be satisfied as jurisdictional facts. In the alternative, the Court can also judicially review the state of satisfaction of a private certifier in relation to CDCs they have issued.

The Court ultimately found in favour of Council, determining that it was appropriate that all three CDCs be declared “invalid”. The Court confirmed that such declarations would have “practical effect” and made orders requiring the owner to undertake extensive remedial works in response to this outcome.

The case highlighted “some of the shortcomings of the present system of private certification under the EP&A Act where that function is conducted incompetently”. This comment was made by the Court in the context of Council explaining why there was a delay in the commencement of the proceedings. The Court acknowledged this would have largely been a result of local councils not being adequately resourced to oversee the large number of CDCs they receive on a regular basis.

Conclusion

Though it is not uncommon for certifiers who are accused of issuing CDCs unlawfully to be referred to the Building Professionals Board for disciplinary action, historically it has been uncommon for the legal effect of these CDCs to be challenged.

Noting that section 4.31 of the EP&A Act is a relatively recent enactment, and that the Court views this provision as being clearly expressed in terms of “amplifying the power of the Court to declare the invalidity of a CDC”, this case may serve as a useful reminder of the alternative avenues available to consent authorities to challenge the validity of CDCs that they consider to have been issued unlawfully. 

For further information on any of the issues raised in this alert, please contact the Environment and Planning team at McCullough Robertson.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.