Australia: Further Changes To The Form Of Planning Certificates

The Environmental Planning & Assessment Act (Act) and Regulations have been changed again regarding the prescribed form that section 149 certificates (Planning Certificates) must take.

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 Certificate:

1. whether the land is significantly contaminated land
2. whether the land is subject to a management order
3. whether the land is the subject of an approved voluntary management proposal
4. whether the land is subject to an ongoing maintenance order
5. whether the land is the subject of a site audit statement.

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:

1. 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
2. add new commercial, industrial and housing types to the General Exempt Development Code
3. 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 stated.

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 suburbs.

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.

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