The Land and Environment Court's decision of Mosman
Municipal Council v IPM Pty Ltd highlights the importance of
providing sufficient detail to satisfy the requirements of cl 137
of the Environmental Planning and Assessment Regulation
2000 (EPA Regulation) when dealing with a complying
development certificate (CDC).
Although this case dealt with public notification issued by an
accredited certifier, it has important implications for councils.
Councils should be aware of the strict requirements set out in cl
137 of the EPA Regulation and ensure sufficient detail on each of
the prescribed matters is provided when publicly notifying the
grant of a CDC. The same considerations apply when providing public
notification of development consents under cl 124 of the EPA
Failing to comply with these statutory provisions will
jeopardise a council's ability to rely on s 101 of the EPA Act
should a legal challenge against a development consent or CDC
granted by the council be commenced.
The Respondent, IPM, had a development consent to build a
five storey mixed use shop/multiple dwelling building. IPM then
sought a CDC from an accredited certifier for internal alterations
to the existing ground floor tenancies to create two shops. The
certifier issued IPM with the CDC on 6 March 2014.
On 10 April 2014, the certifier published a notice in a local
newspaper as follows:
It is advised that the
determination of the application for the Complying Development
Certificate is available for inspection, free of charge, during
ordinary office hours at the Mosman Municipal Council offices.
Under s 101 of the EPA Act, proceedings challenging the validity
of a development consent or CDC must be commenced within three
months of the public notification date. Any proceedings begun after
this limit will be time barred.
In this case, Council began proceedings challenging the validity
of the CDC on 30 September 2014, approximately five months after
the date on which public notice was given.
The Respondent argued that the Court did not have jurisdiction
to hear the matter as the proceedings were time barred. In
response, Council submitted that s 101 did not apply because the
notice was not a notice in line with cl 137(1) of the EPA
Regulation because it failed to specify the "ordinary office
hours" and location of the offices of Council.
Clause 137(1) of the EPA Regulation provides that determination
of an application for a CDC is publicly notified for the purposes
of s 101 of the EPA Act if:
public notice in a local newspaper is given by the council or
an accredited certifier
if the notice describes the land and the development the
subject of the CDC, and
the notice contains a statement that the determination of the
application for a CDC is available for public inspection, free of
charge, during ordinary office hours at the council's
Justice Pepper agreed that notice was not given in line with the
EPA Regulation because it didn't specify the address of Council
and what its ordinary office hours were. Accordingly, the time
limit in s 101 of the EPA Act did not apply and, therefore, the
Court had jurisdiction to hear the matter.
Ultimately, the challenge to the validity of the consent was
dismissed as Council was unable to prove any legal error in the
issue of the CDC.
We would like to acknowledge the contribution of Amaya
Fernandez to this article.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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