Subdivision Certificates and Local Traffic Committee Approval

Today’s article is in response to a question about the withholding of a subdivision certificate subject to Local Traffic Committee approval.

The question is:

A local council is holding up the issue of my subdivision certificate because I don’t have Local Traffic Committee approval yet. Can a local council withhold the issuing of a subdivision certificate if I don’t have Local Traffic Committee approval?

The answer is it depends.

A subdivision certificate cannot be issued unless it meets all the relevant requirements under section 109J of the Environmental Planning and Assessment Act 1979 (EPA Act). This list does not include “Local Traffic Committee approval“, but it does include that “the applicant has complied with all conditions of the consent that… are required to be complied with before a subdivision certificate may be issued”.

There may be a condition on a development consent that requires “the approval of Local Traffic Committee” before the subdivision certificate may be issued. As mentioned in yesterday’s article, Local Traffic Committee does not have the power to issue approvals (for more information on that issue click here). However, development consent conditions are documents that are meant to be interpreted to achieve practical results, and so in practice a “Local Traffic Committee approval” would most likely include the “support of Local Traffic Committee“.

The law allows local councils to reach agreements with applicants if subdivision work has not been completed. However, it does not allow local councils to reach agreements with applicants with respect to conditions that do not involve work, like conditions that require “Local Traffic Committee approval“.

It is important to note that:

  • if a condition about “Local Traffic Committee approval” is not relevant to the particular subdivision certificate application (for instance where the subdivision does not involve work to install traffic control devices) that specific condition may not need to be complied with and “Local Traffic Committee approval” may not be necessary.
  • if there is no condition on the development consent that requires “Local Traffic Committee approval” to be obtained before the subdivision certificate is issued, the local council does not have the power to withhold the issuing of the subdivision certificate, although they have the discretion to issue a fine at a later time. Read more about that here.

Requirements to be met before a subdivision certificate is issued

Section 109J of the Environmental Planning and Assessment Act 1979 sets out the items which must be satisfied before a subdivision certificate is issued. Relevantly it states (with emphasis added):

109J Restriction on issue of subdivision certificates

(1) A subdivision certificate must not be issued for a subdivision unless:

(a) the subdivision is not prohibited by or under this Act, and

(b) in the case of subdivision that may not be carried out except with development consent, a development consent (or, in the case of complying development, a complying development certificate) is in force with respect to the subdivision, and

(c) in the case of subdivision for which a development consent has been granted, the applicant has complied with all conditions of the consent that, by its terms, are required to be complied with before a subdivision certificate may be issued in relation to the plan of subdivision, and

(c1) in the case of subdivision of land to which a planning agreement referred to in section 93F applies, all the requirements of the agreement that, by its terms, are required to be complied with before a subdivision certificate is issued in relation to the plan of subdivision have been complied with, and

(d) in the case of subdivision for which a “deferred commencement” consent under section 80 (3) has been granted, the applicant has satisfied the consent authority concerning all matters as to which the consent authority must be satisfied before the consent can operate, and

(e) in the case of subdivision that relates to land within a water supply authority’s area of operations, the applicant has obtained a certificate of compliance from the water supply authority with respect to the subdivision of the land, and

(e1) in the case of subdivision of land to which water or sewerage services are to be provided under the Water Industry Competition Act 2006, the applicant has obtained a certificate of compliance under that Act for the subdivision of the land, and

(f) in the case of subdivision the subject of an order made by the Court under section 40 of the Land and Environment Court Act 1979 concerning the provision of drainage easements, all such drainage easements have been acquired by the council as referred to in that section, and

(g) in the case of subdivision the subject of a development consent for which the consent authority is required by the regulations to notify any objector:

(i) at least 28 days have elapsed since the objector was notified, or

(ii) if an appeal has been made by the objector within that time, the appeal has been finally determined.

(2) Without limiting subsection (1), a subdivision certificate must not be issued for a subdivision that involves subdivision work unless:

(a) the work has been completed, or

(b) agreement has been reached between the applicant for the certificate and the consent authority:

(i) as to the payment by the applicant to the consent authority of the cost of carrying out the work, and

(ii) as to when the work will be completed by the consent authority, or

(c) agreement has been reached between the applicant for the certificate and the consent authority:

(i) as to the security to be given by the applicant to the consent authority with respect to the work to be completed, and

(ii) as to when the work will be completed by the applicant.

As mentioned above, local councils must ensure that “the applicant has complied with all conditions of the consent that… are required to be complied with before a subdivision certificate may be issued”.

If a condition requiring “Local Traffic Committee approval” is not relevant to the particular subdivision certificate application (like where the subdivision does not involve work to install traffic control devices), that specific condition may not need to be complied with and “Local Traffic Committee approval” may not be necessary.

Similarly, if there is no condition on the development consent that requires “Local Traffic Committee approval” to be obtained before the subdivision certificate is issued, the local council does not have the power to withhold the issuing of the subdivision certificate, although they have the discretion to issue a fine at a later time.

What applicants can do

Section 157 of the Environmental Planning and Assessment Regulation 2000 sets out what must accompany an application for a subdivision certificate. Relevantly it states (with emphasis added):

157   Applications for subdivision certificates

(2) The application must be accompanied by the following documents:

(a) a plan of subdivision,

(b) a copy of the relevant development consent or complying development certificate,

(c) a copy of any relevant construction certificate,

(d) a copy of detailed subdivision engineering plans,

(e) for a deferred commencement consent, evidence that the applicant has satisfied the consent authority on all matters of which the consent authority must be satisfied before the consent can operate,

(f) evidence that the applicant has complied with all conditions of consent that it is required to comply with before a subdivision certificate can be issued, where relevant,

(g) a certificate of compliance from the relevant water supply authority, where relevant,

(h) if a subdivision is the subject of an order of the Land and Environment Court under section 40 of the Land and Environment Court Act 1979, evidence that required drainage easements have been acquired by the relevant council,

(i) for subdivision involving subdivision work, evidence that:

(i) the work has been completed, or

(ii) agreement has been reached with the relevant consent authority as to payment of the cost of the work and as to the time for carrying out the work, or

(iii) agreement has been reached with the relevant consent authority as to security to be given to the consent authority with respect to the completion of the work.

It is critical that the conditions of development consent are reviewed well in advance of any application for a subdivision certificate. Preparing evidence of how conditions are being complied with will be of assistance later down the track at the time a subdivision certificate application is made.

If there is a condition on the consent requiring “Local Traffic Committee approval“, then it is important to liaise with the local council as early as practicable, such as at the time that a construction certificate is being obtained. If such conditions are not identified early, then delays may result when the applicant seeks a subdivision certificate from the local council.

If you have further questions about this issue, you can contact Alyce Kliese directly by clicking here.

 

Posted by

Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.

2 thoughts on “Subdivision Certificates and Local Traffic Committee Approval

  1. How does one access the committee? I would expect the Local Traffic Committee to review developments as required and initiated /attended to by Council members. Not necessarily “approved”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s