A recent Court of Appeal judgment has confirmed that if a private certifier acts in an honest and reasonable manner when assessing and deciding a development application, minor non-compliance or partial compliance with the IDAS process will not lead to retrospective invalidity of any building permit that is issued.

Partner David Nicholls and associate Olivia Williamson outline the findings of the Court, which will provide some comfort to private certifiers who assess development applications.

Key points

  • Delivered in December last year, the reasons for judgment in Stevenson Group Investments Pty Ltd v Nunn & Ors make it clear that while non-compliance with steps required under the IDAS can lead to a development application being void, they are only likely to be void from the date of the Court’s declaration, rather than being retrospectively void from the start (ab initio).
  • In this case, the alleged contraventions of the IDAS process were not considered to be errors that would remove the private certifier’s jurisdiction under the IPA to issue the subsequent building permit.

The Court of Appeal’s consideration of the declarations sought

Even if the applicant in Stevenson Group Investments Pty Ltd v Nunn & Ors had proved that the certifier made legal errors, discretionary considerations would have stopped the Planning and Environment Court from making the declarations that the applicant sought. These considerations included:

  • the lack of utility in the orders sought (the building had been completed for some time);
  • the applicant’s delay in bringing the proceeding; and
  • the potential damage to innocent third parties.

The judgment shows that these sort of factors will determine whether the Court is prepared to exercise its discretion to make the declaration/s sought by an applicant.

What this judgment means for private certifiers

Private certifiers can take some comfort from this judgment. While they still need to take care to properly assess development applications, non-compliance or partial compliance with the IDAS process is likely to be excused, and will not lead to any subsequent building permit issued being retrospectively void and of no legal effect.

In both appeals, the applications for leave to appeal were refused by the Court of Appeal with costs. The costs orders awarded by the Planning and Environment Court were not changed.