Conditions of Consent – Certifier or Council?

When a condition of consent states that a council is to be satisfied about a matter, it may not always be the council who makes the final decision.

The law

Section 161 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) states:

161 Certifiers may be satisfied as to certain matters

(1) This clause applies to the following matters—

(a) any matter that relates to the form or content of the plans and specifications for the following kind of work to be carried out in connection with the erection of a building or the subdivision of land—

(i) earthwork,
(ii) road work, including road pavement and road finishing,
(iii) stormwater drainage work,
(iv) landscaping work,
(v) erosion and sedimentation control work,
(vi) excavation work,
(vii) mechanical work,
(viii) structural work,
(ix) hydraulic work,
(x) work associated with driveways and parking bays, including road pavement and road finishing,

(b) any matter that relates to the external finish of a building.

(2) Any requirement of the conditions of a development consent that a consent authority or council is to be satisfied as to a matter to which this clause applies is taken to have been complied with if a certifier is satisfied as to that matter.

The consequences

Section 161 of the EPA Regulation means that in the instances where a council imposes a condition of consent in relation to the matters at subsection (1), then council or a certifier may satisfy themselves with respect to those matters.

For example, matters which council or a certifier may be able to satisfy themselves on include conditions which require:

  1. amended plans to the satisfaction of the local council prior to a construction certificate;
  2. specifications to be submitted to the local council prior to an occupation certificate or subdivision certificate;
  3. any matter to be addressed in relation to the external finish of a building to the satisfaction of the local council.

What does this mean for conditions of consent?

If a local council prefers to satisfy itself in relation to the matters at section 161 of the EPA Regulation, then it is necessary to obtain this information prior to the granting of development consent.

If a local council is comfortable with a certifier satisfying themself with respect to the issue, then conditions may be placed on a development consent in the usual way.

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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.