Can you trust S149 certificate?

Can you trust S149 certificate?

NO, you CANNOT rely on the information in the Campbelltown City Council Section 149 certificate when you purchase the land. The information in the Section 149 certificate is presented in a way to lure you into a big expense trap.

What is Section 149 Certificate?

According to Infotrack,

Section 149 Certificates, also known as zoning certificates, are legal documents issued by NSW Council’s under the provisions of the Environmental Planning and Assessment Act 1979. They contain information about how a property may be used and restrictions on development that may apply.

In all real estate transactions, the solicitors for the buyer will make sure that the Section 149 certificate is included in the contract of sale. The solicitor then would review the S149 certificate with the buyer to see if there are any conditions which would jeopardize the buyer’s intentions.  Our solicitor did.

Of course one of the conditions we were interest in was that we can build a residential dwelling on the block of land. And we could, according to the certificate.

Can you trust Section 149 Certificate?

But when the application was submitted, Council insisted that, in his opinion, it is not clear that a residential dwelling can be built on this property! Can you believe it? You pay money for a certificate from the local government, and it turns out the certificate does not provide accurate information!

So what happened? Apparently, the size of the whole block of land was large enough to build a residential dwelling. However, the block is subject to what is called split zoning. And one zone permits you to build a residential dwelling , and the other does not. So the Council says, prove to me that that you have what is called a “dwelling entitlement”.

We paid for a separate engagement of a town planning and legal help (add extra money to your budget). The block does have a dwelling entitlement. This entitlement has been established decades and decades ago. While the zoning rules have change since thru a number of Campbelltown City Council Local Environment Plan changes (CLEP), there was a clause that a dwelling entitlement survives these changes (Clause 4.2A(3)(c) of the LEP). One would expect that the Council, being the legal entity that implements the laws and changes for itself, would know its own laws and changes. But NO, Campbelltown City Council does not seem to know or understand its own laws! Or the Council intentionally caused the applicants unnecessary legal expenses, for no apparent reason.

Can you do anything about this confusion?

NO, you CANNOT do anything. Besides general local government legal immunity, there are two clauses in the Environmental Planning and Assessment Act 1979 No 203:

(5)  A council may, in a planning certificate, include advice on such other relevant matters affecting the land of which it may be aware.

May meaning the Council may, possibly, include details relevant to the land, in the Section 149. In other words, Council has the right NOT to disclose any information in Section 149 Certificate, which may become relevant at the development stage.

(6)  A council shall not incur any liability in respect of any advice provided in good faith pursuant to subsection (5)

And yes, this is a “get out of jail free” card ingrained in the law by the Government to protect the Government in case something goes wrong

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