Along with changes that the NSW Government has made to free up
consents under its Housing Code which commenced in February 2009
(to see our article about the February changes to the Housing Code
click here), it has changed the requirements
for disclosure in planning certificates. The changes relate only to
development consents for construction of new houses and for home
Commencing 27 February 2009, the regulations under the
Environmental Planning andAssessmentAct have been changed to specify that a planning
certificate only needs to identify whether or not the land to which
the certificate relates is land on which no complying development
may be carried out. If no complying development can be carried out,
then it must indicate the reason why.
This limited form of certificate will not specify the true
status of the land in relation to all of the matters in the
regulations and therefore, cannot always be solely relied on by a
purchaser. Sometimes, a purchaser will need to make further
enquires with respect to the land.
Councils will now issue s.149 Certificates with a disclaimer
which states: 'This certificate is not to be relied upon for
the purpose of an annexure to a contract for sale of land under the
Disclosure in contracts
All contracts dated on or after 27 February 2009 should either
contain a new planning certificate containing this disclaimer,
or should contain a clause in the contract disclosing the
change to the legislation, disallowing any objection to it.
What is the consequence of failure to
The Conveyancing (Sale of Land) Regulation provides
that a purchaser cannot rescind a contract for failure to disclose
any matter, unless the matter is such that the purchaser would not
have entered into the contract had he/she been aware of its
If vendors are selling vacant residential land or existing or
new residential housing, disclosure of the changes should be made
in any contract dated after 27 February 2009, or a new planning
certificate should be obtained.
If vendors are selling anything else, they can comfortably rely
on their existing certificates.
The Law Society is currently consulting with the Department of
Planning on the effect these amendments have on a vendor's
ability to comply with the disclosure regime specified in the
Conveyancing Act. We will issue a further update if and
when further amendments are made.
t (02) 9931 4904
t (07) 3231 1502
t (07) 3231 1641
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