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 Regulation.

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.

Background

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.

Proceedings

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 offices.

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.

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