Sea level message was invalid

Gosford Council's original encoding of S149(5) was invalid.

In response to the question by a member of Coastal Residents group, the following answer was received from council: "There is no requirement under S149(5) of the Environmental Planning and Assessment Act 1979 to place messages on a planning certificate."

Clause 149 (5) of the EPA Act states the following: "a council may, in a planning certificate, include advice on such other relevant matters affecting the land of which it may be aware."

The most important words in the clause, as decided by the NSW Court of Appeal, is "affecting the land" and a matter must be affecting the land at the time of contract of sale not in the long-term future.

In addition, any message on a planning certificate must be factual and represent the true status of the land at the time of sale.

Under the original encoding, if the 8000 affected residents decided on a course of class action at an average of $50,000 per property, the damage bill for council would be $400 million.

Council will not be at risk of litigation if they keep to the rule of law, which they are now.

Email, 22 Aug 2012

Trev Mitchell and Lynne Brown, St Huberts Island