Changes To The Form Of s.149 (Planning) Certificates

Along with changes that the NSW Government has made to free up consents under its Housing Code which commenced in February 2009 (to see our article about the February changes to the Housing Code click here), it has changed the requirements for disclosure in planning certificates. The changes relate only to development consents for construction of new houses and for home renovations.

Commencing 27 February 2009, the regulations under the Environmental Planning and Assessment Act have been changed to specify that a planning certificate only needs to identify whether or not the land to which the certificate relates is land on which no complying development may be carried out. If no complying development can be carried out, then it must indicate the reason why.

This limited form of certificate will not specify the true status of the land in relation to all of the matters in the regulations and therefore, cannot always be solely relied on by a purchaser. Sometimes, a purchaser will need to make further enquires with respect to the land.

Councils will now issue s.149 Certificates with a disclaimer which states: 'This certificate is not to be relied upon for the purpose of an annexure to a contract for sale of land under the Conveyancing Act'.

Disclosure in contracts

All contracts dated on or after 27 February 2009 should either contain a new planning certificate containing this disclaimer, or should contain a clause in the contract disclosing the change to the legislation, disallowing any objection to it.

What is the consequence of failure to disclose?

The Conveyancing (Sale of Land) Regulation provides that a purchaser cannot rescind a contract for failure to disclose any matter, unless the matter is such that the purchaser would not have entered into the contract had he/she been aware of its existence.

If vendors are selling vacant residential land or existing or new residential housing, disclosure of the changes should be made in any contract dated after 27 February 2009, or a new planning certificate should be obtained.

If vendors are selling anything else, they can comfortably rely on their existing certificates.

The Law Society is currently consulting with the Department of Planning on the effect these amendments have on a vendor's ability to comply with the disclosure regime specified in the Conveyancing Act. We will issue a further update if and when further amendments are made.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.