Section 4.31 of NSW’s Environmental Planning and Assessment Act (1979) provides a Council (and others) with the power to commence proceedings to review the issue of a Complying Development Certificate (CDC). The illustrated case is the first time that the NSW Land and Environment Court used its power under s4.31 in declaring that the CDC that had been issued was invalid.
Case study: Wollondilly Shire Council v Kennedy (2023) NSWLEC 53
This case involved a CDC which had been issued in October 2021 authorising the construction of a large detached shed ‘ancillary to the use of a dwelling’. The intended use for the shed was to house Mr Kennedy’s large collection of historic trucks, cars and motorbikes.
Following a complaint by a member of the public, the Council inspected the foundations for the shed and found them inconsistent with the CDC and the Council commenced a challenge within the statutory limitation period of 3 months.
The Council argued, amongst other grounds, that the Certificate had not identified the purpose of the shed which was more in the nature of a building/car park and as such could not be characterised as a complying development. The proposed use of the shed was not ancillary to the use of the dwelling house but rather it was a separate and independent.
The case illustrates that challenges utilising s4.31 can provide an effective means to having the validity of a CDC reviewed.
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