An accredited certifier can run into huge legal difficulties by issuing a Complying Development Certificate ("CDC") for development that does not qualify as "complying" within the meaning of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the SEPP). In circumstances where a CDC is not properly issued, it can be challenged by a council in the Land and Environment Court. If a finding is made that the CDC is invalid, the certifier can be ordered to pay the council's legal costs (which can be a very expensive proposition, especially when weighed against the relatively small fees that would ordinarily be charged by a certifier for issuing the CDC).
Exactly this "nightmare scenario" unfolded in a case that was decided by Justice Craig on 20 October 2014, Hornsby Shire Council v Trives (2014) NSWLEC 171. In that case, the Council challenged CDCs that were issued in relation to three separate properties in the Council's local government area, all by the same certifier.
The circumstances with respect to each of the properties involved in this case were very similar. All of the sites were located in parts of the council that were designated as "R2 Low Density Residential" under the council's Local Environmental Plan. All of the properties contained existing dwelling houses. All of the CDCs issued by the certifier authorised new buildings that were identified as "detached studios". And all of the floor plans for the so-called "detached studios" provided for the construction of buildings much larger than what might conventionally be considered to be a "studio", each with several bedrooms, a bathroom, a living and dining area, and a kitchen (albeit ones with "hot plates" instead of ovens and stove tops). Very tellingly concerning the actual nature of the buildings authorised by the CDCs was that each was described in the BASIX certificate (stamped and signed by the certifier) as a "separate dwelling house".
Interestingly, the SEPP does not describe the number of bedrooms, or the nature of the other accommodation, that may be provided in a "detached studio". The only guidance that the SEPP provides about the type of structure that can qualify as a "detached studio" is that it must be ancillary development that is habitable and is:established in conjunction with a dwelling house; on the same lot of land as the dwelling house, and separate from the dwelling house.
Justice Craig determined that there were three "fatal flaws" that doomed the CDCs.
First, he found that the proposed buildings were not in fact "ancillary" to the existing dwelling houses, in the sense of being "subservient" forms of development, but were instead themselves most fairly characterised as separate dwelling houses (and thus not eligible for approval through a CDC as "detached studios").
Secondly, Justice Craig concluded that the proposed buildings could not qualify as "complying development" under the SEPP because clause 1.18 of the SEPP provides that development can only be "complying" if it is permissible under the provisions of a local environmental plan. In this case, because Justice Craig had found that the proposed new buildings were most accurately characterised as separate dwellings, he held that the form of development proposed by the CDCs was for either "dual occupancies" or "secondary dwellings". As both of these forms of development are prohibited in Hornsby Council's R2 Low Density Residential Zone, the proposed new buildings could not be lawfully approved as "complying development".
Thirdly, Justice Craig ruled that the CDCs had run afoul of clause 3.8 of the SEPP (relating to lot requirements), which provides that development is not permissible under the provisions of the SEPP when it results in there being more than one dwelling house on a single lot.
The guidance that can be taken from this case is that certifiers should exercise caution and prudence when considering whether to grant a CDC, and should refrain from doing so in doubtful cases. On the face of the situation, given the size of the proposed new dwellings, the nature of the rooms they were planned to accommodate, and their description in the BASIX certificates as "separate dwelling houses", that it was not well-considered for the certifier to approve those grant CDCs for those structures under the appellation of "detached studios". Doing so proved in the event to be "a recipe for trouble".
For those who wish to peruse the Court's judgement, it can be found at the following link:
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=175069
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