The decision of Council of the City of Ryde v Network Developments NSW provides a warning to those obtaining complying development certificates (known as CDCs). In particular, it is critical that the lawfulness of issuing a CDC is considered at the date of issue.

Facts

The Council of the City of Ryde (the Council) commenced proceedings to invalidate a CDC issued by Waratah Certifiers (Waratah) to issue complying development certificate 2020/101 dated 26 March 2021.

The CDC was issued to Network Developments NSW (Network) and approved the demolition of an existing house and the construction of a four-unit manor house (or multi dwelling housing) in relation to land at 835 Victoria Road, Ryde pursuant to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Exempt and Complying SEPP).

The development was able to be approved as complying development if multi dwelling housing on land zoned R2 Low Density Residential under the Ryde Local Environmental Plan 2014 (RLEP) was permitted by an environmental planning instrument.

In this regard, the relevant timeline was as follows:

1. On 20 October 2020 Network lodged an application for the CDC with Waratah seeking approval for the development.
2. At the time Network lodged an application for the CDC, and until 5 March 2021, the Land Use Table for the R2 zone permitted with consent development for the purpose of multi dwelling housing.
3. On 5 March 2021 the RLEP was amended in a way that removed multi dwelling housing from the Land Use Table for the R2 zone. The amendments also inserted a clause that stated that amendments made to the RLEP did not apply to “development applications made but not finally determined before the commencement of the amendments”.
4. The CDC was determined by approval on 26 March 2021 (that is, after the amendment referred to above came into effect).

The meaning of “development application”

One key issue in the proceedings was in relation to the meaning of “development application”, and whether this could include other types of development approvals (such as CDCs). 

Although the RLEP did not define “development application, section 1.4 of the Environmental Planning and Assessment Act 1979 (EPA Act) relevantly defined this term to mean:

(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires-

…

development application means an application for consent under Part 4 to carry out development but does not include an application for a complying development certificate.

The definition of the term “development application” in section 1.4 of the EPA Act therefore expressly excludes applications for CDCs. Furthermore, the Court acknowledged that the definition of “development application” in the EPA Act applies to the RLEP by reason of the Dictionary in the RLEP, which provides that the EPA Act “contains definitions and other provisions that affect the interpretation and application of this Plan”.

Several arguments were put forward to the Court which sought to expand the meaning of “development application” to something broader based on the “context or subject-matter” of the case. These arguments were ultimately rejected.

The Court determined in this matter to invalidate the CDC. The applicant for the CDC, Network, was ordered to pay Council’s costs.

Important take-away

It is critical that those involved in issuing CDCs are aware of the jurisdictional requirements at the date of issuing the CDC. If there is a change with respect to one of these requirements (such as a change to the zoning of the land), then the CDC may be declared to be invalid by the Land and Environment Court.

A full copy of the decision can be accessed by clicking here.