There have been a number of recent changes that amend matters to be disclosed in Planning Certificates (section 149(2) certificates) issued by Councils. 

 The changes are:

• complying developments - certificates are to specify whether or not the land is land on which complying development: 

1. cannot be carried out in accordance with the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, and if development cannot be carried out, the reason why must be stated;

2. may be carried out under each of the codes for complying development in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

• contaminated land – certificates should specify if, at the date when the certificate is issued, the land to which the certificate relates:

1. is significantly contaminated;

2. is subject to a management order;

3. is the subject of an approved voluntary management proposal;

4. is subject to an ongoing maintenance order;

5. is the subject of a site audit statement and if a copy of the statement has been provided to council.

Ensure the planning certificate is up to date 

In light of the above changes, care should be taken to confirm that up to date planning certificates incorporating the above changes, are attached to contracts for sale of land.  

In order to comply with the disclosure requirements under the Conveyancing (Sale of Land) Regulations 2005, the planning certificate must be attached to the contract for sale of land before it is signed by the purchaser.  The provision of an up to date planning certificate after exchange of contracts will not remedy the vendor’s failure to comply with the statutory disclosure requirements.

A breach of the vendor’s statutory warranties may give a purchaser the right to rescind the contract at any time prior to completion. 

A failure to:

• include an up to date planning certificate may be a breach of the vendor disclosure requirements and statutory warranties under the Conveyancing (Sale of Land) Regulation 2005;

• comply with the vendor disclosure requirements will give a purchaser a right to rescind the contract for 14 days from the date of the contract;

• include an up to date planning certificate be a breach of an agents obligations under the Property, Stock and Business Agents Act 2002 under which an agent must not offer residential property for sale unless a planning certificate is made available for inspection.  As a result of such a  failure, an agent may be liable for monetary penalties of up to 100 penalty units (currently $11,000.00).

If you would like any further information on this article, please contact Archie Smith on + 61 2 9225 2604 or email smitha@kempstrang.com.au.

Please note that this information is general only. It is not legal advice. It should not be relied on as a substitute for legal or other professional advice.