UCPR Part 59 and challenging a CDC
Section 101 of the Environment Planning and Assessment Act 1979 (EPAA) ordinarily precludes anyone from challenging the validity of a CDC, if it has been publicly notified. However, Part 59 of the Uniform Civil Procedure Rules 2005 (UCPR) may be used if notification has not taken place, as was the case in Bankstown City Council v Ramahi  NSWLEC 74.
The structure in dispute was a secondary dwelling with attached outbuilding for which Ms Ramahi had sought and obtained a complying development certificate (CDC) from a private certifier (PCA), on 20 February 2014, amended in April 2014 – at all times Council was notified.
Complaints were received after works commenced and on 2 May 2014 Council inspected the property. Council observed the height of the roof and landscaping did not appear to be lawful. The builder was advised to cease work while these were checked against the CDC and SEPP.
On 5 May 2014 the PCA issued an amended CDC changing the design of the roof, notifying Council of same. On 9 May 2014 Council met with builders on-site to advise that the development did not meet the criteria in the SEPP, and steps necessary to comply.
Amendments were sought, but by 19 June 2014 Council advised Ms Ramahi by letter that the development was still non-complying, that the CDC was invalid, that a number of items were required to be remedied and to stop work until this had been done. By 20 November 2014 works had progressed without addressing the non-compliance issues. Council’s solicitors sent Ms Ramahi a letter advising she would be taken to court if the works did not stop or noncompliance issues were not remedied.
Ms Ramahi subsequently lodged a building certificate application which was refused on 19 December 2014. On 26 February 2015, Council commenced Class 4 proceedings seeking declarations and orders that the CDCs were invalid.
The time for filing an application seeking a declaration of invalidity of a CDC is 3 months from the date it was issued: Rule 59.10 UCPR. Section 101 of the EPAA in this case did not exclude the operation of Part 59, because the CDCs were not notified. However given the CDCs were last amended in May 2014, the Council put on a motion seeking to extend the time for challenging the CDC, per subrule 59.10(2) of the UCPR. Preston CJ granted the extension, and after considering the factors set out in subrule 59.10(3), he found that:
1. The Council had a responsibility to challenge the CDCs. There was a public interest in the Council bringing the proceedings.
2. Ms Ramahi through her agents (builders and PCA) was on notice from 2 May 2014 that she should not proceed with the development. The fact that she was not personally notified until 19 June 2014 did not absolve her for carrying out the development.
3. As soon as Council was made aware of the noncompliance, it investigated and attempted to resolve the matter by way of requests and letters of demand which was not unreasonable (See over).
4. His Honour was not convinced by Ms Ramahi’s argument that certainty and finality of decisions outweighs, in this case, the public interest in upholding and enforcing the statutory requirements for the validity of CDCs. Accordingly, his Honour considered the delay of 6.5 to 9 months was not undue. Finally his Honour considered the strength of the parties case.
Ms Ramahi submitted that the delay and costs she would suffer were sufficient reason the court should not exercise its discretion in favour of the Council – his Honour did not agree. He said that the Council had reasonable prospects of obtaining relief to remedy the clear breach of the EPAA in terms of a declaration that the CDCs are invalid, and also by way of an order requiring demolition or rebuilding of the secondary building *** Councils should consider bringing proceedings within the relevant 3 month period, to avoid the necessity and uncertainty involved in applying for an extension.