Under the Environmental Planning and Assessment Act 1979 (NSW) (‘the Act’) s 85A developers must apply through the local government council or an accredited certifier for a Complying Development Certificate (‘CDC’). However, recent cases serve as a reminder that the Court remains as overseer of private certifiers.
In Bankstown City Council V Ramahi (No 2)  NSWLEC 34 a private certifier was found to have issued three CDCs invalidly. The first was found to have approved a non-compliant development application and, the remaining two were issued subsequent to modifications stated within the applications already having been completed.
The respondent questioned whether the Land and Environment Court had jurisdiction over the first CDC as it was the role of the certifier and council to approve developments on a basis of fact. However, the Court upheld a previous decision in Hornsby Shire Council v Trives (No 3)  NSWLEC 190 where judicial jurisdiction was upheld. This is because whether a CDC has been issued validly and a development compliant requires a certifier be satisfied that the development is ‘complying development’ within the meaning of the relevant environmental planning instrument. For a certification to be in a state of “satisfaction” it must be one that could be formed by a reasonable person who correctly understood the meaning of the law.
The remaining two CDCs were found invalid as a CDC cannot be issued for development that has already been carried out, including a modification to a CDC under s87 of the Act. A modification of a CDC is unlike a modification application under s96 of the Act, which can be issued in respect of development that has already been carried out.
The non-compliant parts of the development were required to be demolished or rectified.