Complying development in PCA’s opinion

In the case of Trives v Hornsby Shire Council [2015] NSWCA 158, the Court of Appeal held that the Land and Environment Court has no power to make its own assessment as to what a PCA has determined to be “complying development” pursuant to s85A(3) of the EPAA.

The Council put a question of law before the Land and Environment Court in three separate proceedings and in so doing it challenged the validity of CDCs issued by a PCA in relation to development comprising detached studios respectively built on three residential properties.

The Council’s argument was that the CDCs were invalid because the development was not to be characterised as “complying development”. Therefore CDCs should not have been issued.

Justice Craig held that the CDCs were invalid for three reasons:

(1) development proposed in each case was not ancillary to the existing dwelling house on each property; (2) the development does not comply with cl 1.18 of the Complying Development SEPP and (3) the development does not comply with cl 3.8 of the SEPP.

The PCA appealed the decision on the basis that the Land and Environment Court had no power to decide the matter, given that the challenge was to a characterisation made by the PCA.

The Court of Appeal upheld the appeal for the following reasons: Section 85A(3) required the certifier to consider the application and form an opinion as to (a) whether the development was complying development; (b) whether it complied with the relevant development standards; and, (c) if it was complying development because of an LEP or SEPP does it comply with those standards.

Having formed the relevant opinion, because s.85A(3) requires the PCA to determine the above three questions, if the PCA so determines the questions in the affirmative, then s.85A(7) is engaged and the PCA has an obligation to issue a CDC.

In other words, the Court of Appeal was saying that the issue went to a matter of opinion. Unless it can be shown that the PCA exercised his/her power otherwise than in accordance with the relevant legal requirements, e.g. the development standards, there would be no basis for challenging the validity of the CDC.

In addition the Court held that subs 85A(10) has the empathic effect of precluding an appeal from a determination. The Court said this was different to the constitutional right of appeal that would arise if, for example, the PCA made a determination it had no power to make.

The summary of this case is that it is not the intent of the EPAA that the validity of a CDC can be challenged purely on the basis that the challenger offers a contrary characterisation of the subject development. However in our view, if a decision of a PCA is irrational or illogical and not based on upon findings or inferences of fact supported by logical grounds, then perhaps the CDC can be the subject of judicial scrutiny (Re: Minister for Immigration and Multi Cultural Affairs 198 ALR 59 [34]).

1st July, 2015