Court Refuses to Grant Building Certificate for Illegal Advertising Sign

Commissioner Susan Dixon of the Land and Environment Court has ruled that the court does not have power to grant a building certificate for development that is “prohibited” under local zoning codes.

It has been a very common practice for persons who have carried out development without first obtaining development consent to seek to “regularise” the development by obtaining a building certificate for the works.  The legal effect of securing a building certificate is that the council cannot require that the development be demolished, repaired or rebuilt for 7 years.

However, in a decision dated 23 May 2011, Commissioner Dixon held that prohibited development cannot be regularised in this manner.

The case, APN Outdoor (Trading) Pty Ltd v Council of the City of Sydney, (2011) NSWLEC 1131 involved an advertising sign that had been affixed to the wall of a terrace house in Glebe.  The property was located within a heritage conservation area.  Accordingly, the display of advertising was prohibited under State Advertising Planning Policy 64 – Advertising and Signage.  In addition, the applicable Local Environmental Plan proscribed the display of advertising in the area.

The proceedings came before the Court after the council had issued an order requiring that the signage be removed, and had then refused an application for a building certificate for the sign.

Commissioner Dixon decided that the legal position with respect to development that is prohibited by applicable planning controls is fundamentally different from development that is permissible.  The Commissioner found that “there is an overriding public interest” in upholding zoning regimes by  preventing prohibited development from remaining in place.  Thus, while a building certificate may be obtained “after the fact” to regularise permitted development that has been performed without consent, the Court held that it did not have authority to order the council to grant a building certificate for development that is completely prohibited.

The full text of the Court's juddgement is available at:

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=152160