The Environmental Planning & Assessment Act (Act)
and Regulations have been changed again regarding the prescribed
form that section 149 certificates (Planning Certificates) must
Every contract for the sale of land in NSW must attach a
Planning Certificate, and these are required to give up to date
information (as at the date of the certificate) on certain
prescribed issues that may affect the land being sold.
In the normal course of the sale of a property, a Planning
Certificate can be weeks or even months old by the time contracts
for the sale of a property are actually exchanged. It therefore
presents difficulties when the form of the certificate is changed
in the interim.
Unfortunately, there are certain changes that are effective from
1 September 2009. Others are effective from 7 September 2009.
1 September 2009
These changes come about pursuant to changes to the
Contaminated Land Management Act 2008 and from 1
September, the following matters must be specified in a Planning
whether the land is significantly contaminated
whether the land is subject to a management order
whether the land is the subject of an approved voluntary
whether the land is subject to an ongoing maintenance
whether the land is the subject of a site audit
7 September 2009
State Environmental Planning Policy (Exempt and Complying
Development Codes) (known as the Codes SEPP) commenced on 27
February this year. Further changes to the Codes SEPP take effect
from 7 September 2009. These:
introduce a new Housing Internal Alterations Code and
a new General Commercial and Industrial Code. These new
codes deal with changes of use and internal alterations within
certain bulky good premises, commercial premises, premises used for
light industry, a warehouse or distribution centre, as well as
internal alterations to existing dwelling houses
add new commercial, industrial and housing types to the General
Exempt Development Code
amend some development types and standards in the General
Housing Code to clarify their interpretation.
As a result of these changes to the Codes SEPP, Regulations have
introduced some new rules for Planning Certificates.
Councils are required to provide information on a Planning
Certificate as to whether or not the land is land on which
complying development may be carried out under the Codes SEPP. If
complying development may not be carried out, the reasons must be
As can be seen by the nature of these changes to other
legislation, there are very few parcels of land that are not
potentially affected by one or both of the new disclosures now
required to be made.
We therefore consider it prudent, where at all possible, to
defer obtaining new Planning Certificates until 8 September or
later. If vendors are relying on earlier Planning Certificates,
they should renew them.
There are perhaps certain circumstances where a vendor might
consider itself safe in regard to the contaminated land disclosures
e.g. sales of existing residences or units in established
There would be very few sales at all falling outside the reach
of the Codes SEPP and its amendments.
Vendors should not rely on "old" Planning Certificates
without legal advice and each property should be considered on its
own, rather than adopting a blanket policy.
No contract annexing an "old" Planning Certificate
should be exchanged without an appropriate disclosure clause,
drawing attention to the possible deficiencies in the certificate
and prohibiting claims or objections. There is no guarantee that a
disclosure clause will save a vendor from attack as the clause does
not actually correct the defect in the Planning Certificate, but it
will at least bring the attention of the purchaser and its legal
advisers to the issue.
Gadens Lawyers has drafted detailed disclosure
clauses which can be used in contracts on instructions from vendors
when there are urgency considerations.
Many retail leases include a covenant to trade, requiring the tenant to open the premises for trade during certain hours.
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