Underutilised: Certificate of Compliance

Not to be confused with a Statement of Compliance (required as part of a subdivision), the Victorian Civil and Administrative Tribunal (VCAT) as previously noted (in Studley Street Developments  Pty Ltd v Yarra CC  [2013] VCAT 1762) that ‘Certificates of Compliance’ are:

… intended to provide a quick, simple and cheap means for obtaining documentary evidence that a particular proposed or existing use or development can be carried on without a permit.

Section 97N of the Planning & Environment Act includes a seldom utilised provision that states:

Any person may apply to the responsible authority for—

(a)           a certificate stating that an existing use or development of land complies with the requirements of the planning scheme at the date of the certificate; or

 (b)          a certificate stating that a proposed use or development (or part of a use or development) of land would comply with the requirements of the planning  scheme  at the date of the certificate.

Some significant advantages of utilising the certificate of compliance process include:

  • No public notification of the application is required and;
  • Council has a 30-day statutory timeframe to determine the application.

Similar to a planning permit application, the certificate-applicant has a right to Review at VCAT against any decision to refuse to grant a certificate and Council’s failure to grant a certificate within the statutory timeframe.

Practitioners should be aware of what a certificate of compliance can offer their clients and how they assist with your projects. The following case provides some insight into the benefit of these certificates.

In one of our more memorable appeals, Clause 1 was asked to represent the interests of a business owner operating a DVD reproduction, sales and hire shop out of a garage in a residential zone. Council had commenced enforcement proceedings and issued a fine against the shop operator, who also lived at the premises. Council’s action was initiated by complaints from a similar type of DVD shop located within a nearby activity centre/commercial zone.

Under the provisions of the residential zone the use of the site as a retail premises or shop was outright prohibited by virtue of the use being listed as a Section 3 use.

Our initial site visit found thousands of copied DVDs piled up on tables in the garage of the house, multiple DVD burners and three staff operating a busy little enterprise.

After a detailed review of the use we lodged, on behalf of our client:

  • An application for Internal Review seeking reconsideration of the Planning Infringement Fine imposed, pending the outcome of;
  • An application for a Certificate of Compliance seeking to confirm that the DVD reproduction, sales and hire shop was in accordance with the provisions of the Planning Scheme;
  • Later, an appeal to VCAT after Council refused to grant the Certificate of Compliance.

As a result of the appeal the Tribunal agreed with our assertion that the use met the tests associated with a Home Occupation and ordered that a Certificate of Compliance be issued, without the need to notify neighbours or competing DVD Shop, stating that the use was lawful.

The certificate of compliance process can be of particularly interest in matters where applicants are seeking formal confirmation of:  existing use rights, whether or not a permit is required to extend an existing use or commence a new use, whether a permit is required to undertake development or remove vegetation and numerous other scenarios.

Seek Professional Advice
Information contained in this publication should be considered as a reference only and is not a substitute for professional advice. No liability will be accepted for any loss incurred as a result of relying on the information contained in this publication. Seek professional advice in specific circumstances.
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