A recent Court of Appeal judgment has confirmed that if a
private certifier acts in an honest and reasonable manner when
assessing and deciding a development application, minor
non-compliance or partial compliance with the IDAS process will not
lead to retrospective invalidity of any building permit that is
Partner David Nicholls and associate Olivia Williamson outline
the findings of the Court, which will provide some comfort to
private certifiers who assess development applications.
Delivered in December last year, the reasons for judgment in
Stevenson Group Investments Pty Ltd v Nunn & Ors make
it clear that while non-compliance with steps required under the
IDAS can lead to a development application being void, they are
only likely to be void from the date of the Court's
declaration, rather than being retrospectively void from the start
In this case, the alleged contraventions of the IDAS process
were not considered to be errors that would remove the private
certifier's jurisdiction under the IPA to issue the subsequent
The Court of Appeal's consideration of the
Even if the applicant in Stevenson Group Investments Pty Ltd
v Nunn & Ors had proved that the certifier made legal
errors, discretionary considerations would have stopped the
Planning and Environment Court from making the declarations that
the applicant sought. These considerations included:
the lack of utility in the orders sought (the building had been
completed for some time);
the applicant's delay in bringing the proceeding; and
the potential damage to innocent third parties.
The judgment shows that these sort of factors will determine
whether the Court is prepared to exercise its discretion to make
the declaration/s sought by an applicant.
What this judgment means for private
Private certifiers can take some comfort from this judgment.
While they still need to take care to properly assess development
applications, non-compliance or partial compliance with the IDAS
process is likely to be excused, and will not lead to any
subsequent building permit issued being retrospectively void and of
no legal effect.
In both appeals, the applications for leave to appeal were
refused by the Court of Appeal with costs. The costs orders awarded
by the Planning and Environment Court were not changed.
HopgoodGanim acted for the respondents in Stevenson Group
Investments Pty Ltd v Nunn & Ors in both the Planning and
Environment Court and the Court of Appeal. Further details about
the Planning and Environment Court's summary judgment
determination, including factual details about the case, can be
found in our
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