When a CDC goes wrong: lessons from court cases

Case 1: Bankstown City Council v Ramahi (No 2) [2016] NSWLEC 34

What happened

A private certifier issued CDCs for a granny flat (secondary dwelling) behind a house in Condell Park, in south-west Sydney. The built granny flat was nowhere near complying development:

At least one certificate was also issued after the work had already been done.

What the court decided

• The certificates were invalid. The certifier couldn't reasonably have been satisfied the development was complying development.
• Where mandatory standards are clearly not met, the council didn't have to prove the certifier's decision was irrational, which would have been a much higher bar.
• A CDC, or a modification of one, can't be issued for work already carried out.
• The owner was ordered to partly demolish the granny flat so it complied. The court weighed the environmental impacts and the need to protect the integrity of the planning system.

Case 2: Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190

This earlier decision confirmed that the Land and Environment Court has jurisdiction to review whether a CDC was validly issued. The court in Ramahi followed it when the owner argued the court couldn't look at the first certificate. In short: a certifier's CDC is not beyond the reach of the court.

Case 3: Wollondilly Shire Council v Kennedy [2023] NSWLEC 53

This one wasn't about setbacks. A CDC approved a very large shed, about 1,400 m². The owner planned to use it to store a car collection, but the certifier didn't know that, and the certificate didn't state what the shed was for.

• The court said a CDC should be clear on its face, including its purpose. A CDC can only be issued for a permitted purpose.
• Emails and conversations before the certificate was issued can't be used to fill gaps in it.
• Having the CDC didn't stop the council from asking the court to declare it invalid.

Lessons for homeowners

1. A CDC isn't a shield. If it was wrongly issued, you can still be ordered to fix or remove the work, even though the certifier made the call.
2. Never build first and certify later. A CDC can't approve work that's already been done.
3. Check the numbers yourself. Height, setbacks, landscaped area and (for granny flats) floor area. If something looks too good to be true on a small lot, ask why.
4. Make sure the certificate says what you're building and why, especially for sheds, studios and outbuildings.

Lessons for certifiers

1. Be genuinely satisfied on every standard, with the working on file. "Reasonably satisfied" is tested against what the plans actually show.
2. Watch secondary dwellings closely. Floor area, setbacks and "extra rooms" are where complaints and cases come from.
3. State the purpose of the development clearly on the certificate.
4. Refuse to certify completed work, including through a modification.
5. When in doubt, ask for more information or a peer review rather than approve.

These summaries are drawn from published case notes, not legal advice. Read the full judgments on NSW Caselaw before relying on them.