For a NSW property developer, the section 10.7 planning certificate is the most consequential single piece of paper in the acquisition stack. It is also the most consistently misread. Conveyancers treat it as a settlement-stage attachment; vendor agents treat it as a tick-box; buyer-side commentary treats it as something a homeowner glances at before exchange. None of that is wrong, exactly, but none of it is how a developer should be using the certificate. At acquisition stage the section 10.7 — the document previously known as the section 149 certificate — is the closest thing in NSW practice to a statutory disclosure of every planning, environmental, and infrastructure constraint a council is aware of on a parcel of land, with a specific carve-out from council liability for everything in the discretionary part of the certificate and a separate carve-back for contaminated land advice. Read line by line, in the right sequence, with the right cross-references to the underlying planning instruments, it is the cheapest piece of due diligence on a NSW site and the only one that comes with a statutory “conclusively presumed to be true and correct” defence under section 10.7(7) of the Environmental Planning and Assessment Act 1979 (NSW).
This guide is written for developers acquiring, holding, or repositioning sites in NSW under the planning framework as it sits in May 2026 — after the Low and Mid-Rise Housing Reform Phase 2 (commenced 28 February 2025), after the Transport Oriented Development (TOD) Program (commenced 13 May 2024), and after the 2022 changes to Schedule 2 of the Environmental Planning and Assessment Regulation 2021 (NSW) that added draft instruments, biodiversity stewardship, Western Sydney Aerotropolis controls, and special entertainment precincts to the prescribed matters. We have covered the statutory architecture, all 25 prescribed matters in Schedule 2, what each notation typically means for a feasibility, the discretionary 10.7(5) advice and why it is the most expensive paragraph on the certificate to misinterpret, the cost stack, the currency window, and a triage framework for what to do when an adverse notation appears that you were not expecting at offer stage.
The statutory architecture of a section 10.7 certificate
The section 10.7 certificate is created by section 10.7 of the Environmental Planning and Assessment Act 1979 (NSW). The provision was previously section 149 of the same Act, and the terms “section 149 certificate”, “149 certificate”, and the historical “zoning certificate” still appear interchangeably in conveyancing software, contract templates, and older council policies — all of which now refer to what is formally a section 10.7 certificate under the 2017 renumbering. Subsection (1) gives any person a right to apply to the council for a certificate on payment of the prescribed fee; subsection (2) obliges the council to issue a certificate “specifying such matters relating to the land to which the certificate relates as may be prescribed (whether arising under or connected with this or any other Act or otherwise)”; subsection (5) gives the council a discretion to include advice on “such other relevant matters affecting the land of which it may be aware”.
What developers most often miss is the liability structure baked into subsections (6) and (7). Subsection (7) provides that a planning certificate “shall, in favour of [the person who obtained it or who might reasonably be expected to rely on it], be conclusively presumed to be true and correct” for the purpose of proceedings for an offence against the Act or the regulations. In practical effect, if a developer relies on what the certificate says about, say, the absence of a development control plan affecting the land, and that reliance later leads to a regulatory issue, the council is not in a position to argue that the certificate was wrong. The statutory presumption operates as a near-absolute defence for the reliant party. Subsection (6) then carves the council out of liability for advice given in good faith under subsection (5) — the discretionary part — but expressly removes that protection for advice provided in relation to contaminated land within the meaning of Schedule 6 of the Act. The contaminated-land carve-back is the most useful clause on the certificate for a developer: it is the one category of council advice that the council is liable for, which means the council has every incentive to be cautious and accurate about what it says, and the developer has the strongest grounds for relying on what is — or is not — disclosed.
The matters that “may be prescribed” under subsection (2) are set out in Schedule 2 of the Environmental Planning and Assessment Regulation 2021 (NSW), under the authority of regulation 290. The current Schedule 2 contains 25 numbered matters, and as of 1 October 2022 it has included draft environmental planning instruments and draft development control plans that have been subject to community consultation or public exhibition. The pre-2022 version under the Environmental Planning and Assessment Regulation 2000 (NSW) used a Schedule 4 framework with a different ordering, which is why older council policies, conveyancing memos, and the standard contract for sale templates still occasionally reference Schedule 4 matters. The substantive coverage is broadly continuous, but the items are reordered and several new categories (biodiversity stewardship sites, biodiversity certified land, Western Sydney Aerotropolis controls, special entertainment precincts) have been added.
There are two types of certificate, distinguished only by which subsections of section 10.7 the application invokes. A section 10.7(2) certificate contains the prescribed matters under Schedule 2 only — the statutorily required content. A section 10.7(2) and (5) certificate contains the Schedule 2 matters plus the discretionary advice the council chooses to include under subsection (5). In practice nearly every council issues the same physical document, structured in two parts, with the (5) advice appended when the higher fee is paid. The standard contract for sale of land in NSW under the Conveyancing (Sale of Land) Regulation 2022 requires only the 10.7(2) attached to the vendor’s disclosure; obtaining the 10.7(5) is the buyer’s responsibility, and for a developer at acquisition stage it is almost always worth the additional fee.
Section 10.7(2) vs section 10.7(5): the part that matters for a developer
The distinction between the two parts of the certificate is the single most consequential drafting choice on the document, and the published commentary on it is poor. Most legal explainers describe the (5) component as “additional information” or “extra advice”, which is correct but understates the asymmetry.
The (2) part is what the council is legally required to disclose under Schedule 2. The council has no discretion to leave a Schedule 2 matter off the certificate if the underlying instrument or hazard applies to the land. If the land is in the R3 Medium Density Residential zone under the relevant local environmental plan (LEP), the certificate must say so. If the land is bushfire-prone under a NSW Rural Fire Service designation, the certificate must say so. If a section 7.11 (formerly section 94) contributions plan applies, the certificate must say so. The (2) part is essentially a structured statutory disclosure.
The (5) part is everything the council is aware of but is not strictly required to disclose: advice from other authorities (Sydney Water service status, Roads and Maritime corridors, RFS-specific advice beyond the Schedule 2 bushfire notation), dwelling entitlement on rural lots, burials on private land, the application of council’s own management of contaminated land policy, voluntary planning agreements (VPAs) recorded against the land, and any other matter the council considers relevant. The (5) advice is given without liability under subsection (6), except for contaminated land advice where the carve-back applies.
From an acquisition-DD perspective, the asymmetry runs in the developer’s favour. The (2) part gives the developer the statutory presumption under subsection (7) but is constrained to the prescribed matters. The (5) part is broader but discretionary, given without liability, and reliance on it requires more independent verification. The strategic implication is that the (2) part is the floor of what a developer can rely on; the (5) part is the early-warning radar for everything the council knows but is not required to formally certify.
For sites where the development pathway hinges on whether the council holds a particular policy or advice — for example, whether a stormwater overlay applies, whether a heritage interim heritage order has been considered, whether the council has had any pre-DA discussions with an adjoining owner — the (5) advice may be the only easy disclosure mechanism short of a Government Information (Public Access) Act 2009 (NSW) application. For sites where the certified planning controls themselves are the deal-defining variable, the (2) part is the document that carries the legal weight.
A developer with any meaningful site exposure should order the 10.7(2) and (5) at offer stage, not at exchange. Ordering at exchange means the document arrives after the buyer has committed to the price and most of the contract conditions; ordering at offer stage means the developer can shape the offer, the deposit, and the special conditions around the actual disclosure rather than around the contract-attached version (which may be months old and may be a 10.7(2) only).
Schedule 2 walkthrough: all 25 matters and what each one means at acquisition
The current Schedule 2 of the EP&A Regulation 2021 lists 25 matters that a 10.7(2) certificate must specify. The following walkthrough takes them in regulation order, with the developer interpretation of what each notation means for feasibility and what an unexpected entry typically signals.
1. Names of relevant planning instruments and development control plans
The certificate names every environmental planning instrument (EPI) that applies to the development of the land — most commonly the relevant LEP, every State Environmental Planning Policy (SEPP) that affects the land, and every council development control plan (DCP). Since 1 October 2022 it also names every proposed EPI and draft DCP that has been the subject of community consultation or public exhibition under the Act, except where it has been more than 3 years since the end of public exhibition or where the Planning Secretary has notified the council that the proposed instrument has been deferred indefinitely or not approved.
For a developer, the draft-instrument disclosure is generally more important than the in-force list. A draft DCP or LEP amendment that has been exhibited and is on the path to gazettal could materially shift the controls under which a current DA would be assessed, and the council is increasingly likely to treat a draft instrument as a “matter to be considered” under section 4.15(1) of the EP&A Act once it has been publicly exhibited. The 3-year window in clause 1(3)(a) of Schedule 2 is the cleanest indication of whether a draft is still live or whether it has effectively been abandoned without formal notification.
The list of in-force instruments is the developer’s primary anchor for the rest of the assessment. From the LEP name on the certificate, the developer reads the gazetted version on the NSW Legislation website to confirm zone definitions, schedule items, and any local amendments to the Standard Instrument Principal Local Environmental Plan.
2. Zoning and land use under relevant planning instruments
This is the matter most acquisition desks read first, and for good reason. The certificate identifies the zone (by name and number — for example “R3 Medium Density Residential” or “E2 Commercial Centre”), the purposes for which development may be carried out with consent, without consent, and is prohibited, and whether additional permitted uses apply via Schedule 1 of the relevant LEP. It also specifies whether the land has a fixed minimum lot size for a dwelling house, whether the land is in an area of outstanding biodiversity value under the Biodiversity Conservation Act 2016 (NSW), whether it is in a conservation area however described, and whether an item of environmental heritage is located on the land.
For a developer the trap is that the zone is the starting point, not the answer. Permitted uses are subject to all of the controls in the LEP (clauses 4.3 height, 4.4 floor space ratio (FSR), 5.10 heritage, 5.11 bush fire hazard, the local-specific clauses in Part 6, and so on), plus the controls in the relevant DCP, plus the controls in every SEPP that applies under matter 1. A site in R3 with a 9.5m height and 0.5:1 FSR yields very differently from a site in R3 with an 11.5m height and 0.8:1 FSR — and the certificate gives the zone but does not tell you which control applies, only what instrument to read.
The heritage notation under matter 2(g) is one of the most consequential adverse findings on a NSW certificate. A property that is listed on the LEP heritage schedule (Schedule 5 of most LEPs) is subject to clause 5.10, which significantly constrains demolition and substantial alteration, and any development is subject to detailed heritage impact assessment. The certificate notation itself is usually a single line; the underlying constraints are in the LEP schedule and the council’s heritage DCP, and a developer who sees this notation appearing for the first time on the certificate after offer should treat it as a stop-and-reassess event rather than a minor variation. Our heritage overlays guide covers the substantive heritage assessment in more detail.
3. Contributions
The certificate names every contributions plan under Division 7.1 of the EP&A Act that applies to the land, including draft contributions plans, plus the name of any region and Ministerial planning order if the land is in a section 7.23 special contributions area, plus the name of any special contributions area to which a continued section 7.23 determination applies.
For feasibility purposes the contributions notation tells the developer which council infrastructure contribution framework will apply. The actual rates and per-dwelling or per-square-metre charges are in the named plan itself, which the developer reads alongside the relevant Housing and Productivity Contribution under the Special Infrastructure Contribution framework if the site is in a region within the meaning of Division 7.1. Our developer contributions and infrastructure levies guide works through how the contribution frameworks stack on a typical feasibility.
4. Complying development
The certificate states whether complying development may be carried out under each of the codes in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Codes SEPP), and where it cannot, the reasons under clauses 1.17A, 1.18(1)(c3), 1.19 or 1.12 of the Codes SEPP. Where the council does not have sufficient information to ascertain the extent to which complying development is available, the certificate must say so explicitly.
The complying development notation is the single most operationally significant clause on the certificate for a small-to-mid residential developer. A site that is excluded from CDC under the relevant code — most commonly because of foreshore building lines, heritage conservation areas, environmentally sensitive land, draft heritage listings, or coastal hazard areas — is forced down the development application (DA) pathway, which typically adds 6–12 months to the program and materially changes the assessment risk. Our DA approval guide covers the DA pathway in detail. A developer modelling a CDC-based feasibility on a site that the certificate later notes as CDC-excluded is looking at a fundamental program reset, not a refinement.
5. Exempt development
The certificate states whether exempt development may be carried out under each of the exempt codes in the Codes SEPP, with the same structure as the complying development matter — reasons for exclusion, statement of insufficient information, and any variation under clause 1.12. For most acquisition feasibilities the exempt development matter is a secondary check; it primarily affects what minor works can be undertaken without consent during holding or pre-development. For a build-to-hold or staged-disposal strategy where minor improvements are part of the holding period plan, the exempt development pathway availability can be relevant.
6. Affected building notices and building product rectification orders
The certificate states whether the council is aware that an affected building notice is in force, that a building product rectification order is in force and has not been fully complied with, or that a notice of intention to make a building product rectification order is outstanding. These notices arise under Part 8 of the Environmental Planning and Assessment Act 1979 (NSW) in response to the use of non-compliant external cladding and other prescribed building products.
For a developer acquiring an existing building for repositioning or staged demolition, this is a critical disclosure. An outstanding rectification order or notice of intention to make one transfers obligations to the new owner on settlement and may include substantial rectification cost. Acquiring a site with an outstanding cladding rectification notice without specific contractual carve-outs is rarely a good outcome.
7. Land reserved for acquisition
The certificate discloses whether an in-force or proposed EPI makes provision for the acquisition of the land by an authority of the State under section 3.15 of the EP&A Act. A reservation notation is the highest-stakes single line on a planning certificate. Land reserved for public acquisition cannot be developed in the ordinary course, and the development feasibility collapses to the value of the land at acquisition under the relevant Land Acquisition (Just Terms Compensation) Act 1991 (NSW) framework. A reservation found at certificate stage that was not flagged in agent disclosure is grounds to withdraw the offer.
8. Road widening and road realignment
The certificate states whether the land is affected by road widening or road realignment under Part 3 Division 2 of the Roads Act 1993 (NSW), under any EPI, or under a resolution of the council. A road widening notation typically removes a strip from the developable footprint of the site and, where the widening is unconstructed, may impose setback requirements that constrain the building envelope even before the widening is acquired.
The feasibility implication is twofold: the affected strip may be subject to future acquisition (with the same Just Terms Compensation framework as matter 7 reservations) and the remaining buildable area is typically reduced by the equivalent width plus any setback from the widened alignment. A road widening notation on a 600 m² site that takes 60 m² off the footage is a 10% reduction in developable area before setbacks — material for a townhouse or small apartment feasibility.
9. Flood related development controls
The certificate states whether the land or part of it is within the flood planning area (typically defined as land below the flood planning level — usually the 1% AEP plus a freeboard, with the council’s adopted policy setting the exact methodology), and whether it is between the flood planning area and the probable maximum flood (PMF). Most NSW councils now publish detailed flood study mapping that supplements the certificate notation, and the Penrith Council floodplain management and planning certificate notations factsheet is one of the more transparent illustrations of how a metropolitan council interprets the matter.
The flood notation is the second most consequential adverse finding after heritage for typical residential acquisitions. A site partially within the flood planning area requires the development to demonstrate compliance with the council’s flood-related development controls — usually under a flood DCP clause — which may include minimum floor levels, structural design for buoyancy and scour, evacuation route demonstrations, and (in some councils) flood storage compensation requirements. A site between the flood planning area and the PMF is generally able to proceed but is subject to evacuation risk assessment and may carry additional insurance and disclosure obligations.
The hidden cost on flood-affected sites is usually the basement and slab elevation cost: a 600mm slab elevation to meet flood planning level can add 100,000–300,000 AUD to a small apartment project on cost-plus contracting and may render the lower ground floor unusable, with corresponding reductions in net saleable area.
10. Council and other public authority policies on hazard risk restrictions
This catch-all matter requires the certificate to note any adopted council policy that restricts development because of land slip, bush fire (where not separately notated under matter 11), tidal inundation, subsidence, acid sulfate soils, contamination, aircraft noise, salinity, coastal hazards, sea level rise, or “another risk”. This is where the developer should expect to see contaminated land policy notations, acid sulfate soil mapping references, coastal hazard adaptation policy citations, and aircraft noise contour references — all of which have substantive cost implications that are not visible in the single-line notation.
A “council contaminated land policy applies” notation under matter 10, in combination with any 10.7(5) advice on the same topic, is the trigger for proper Phase 1 environmental site assessment before final due diligence sign-off. Our contaminated land assessment guide works through the Phase 1 / Phase 2 process and how it integrates with the DA pathway.
11. Bush fire prone land
The certificate must state whether all or any of the land is bushfire prone land designated by the Commissioner of the NSW Rural Fire Service under section 10.3 of the EP&A Act, or a statement that none of the land is bushfire prone. Where the land is bushfire prone, the development is subject to the Planning for Bush Fire Protection 2019 guidelines and triggers a category-specific Asset Protection Zone (APZ), construction-level Bushfire Attack Level (BAL) requirements, and (for “special fire protection purposes” — aged care, schools, retirement villages, child care) RFS consultation under section 4.14 of the EP&A Act.
For typical residential development the operational impact is the APZ encroachment on yield and the BAL-driven construction cost premium. A 10m APZ on a 600 m² lot consumes approximately 60 m² of developable area; a BAL-29 or higher construction standard adds material cost to the building envelope (typically 5–15% on the residential build component depending on category and form). The certificate notation does not specify the BAL; it only flags that the land is bushfire-prone, with the BAL to be determined by detailed assessment at DA stage.
12. Loose-fill asbestos insulation
If the land includes residential premises listed on the loose-fill asbestos register under Part 8 Division 1A of the Home Building Act 1989 (NSW), the certificate must state that fact. This is a niche but high-consequence notation — typically applicable to a small set of Mr Fluffy-affected properties from the historical Asbestosfluf installation program. A development acquisition on a listed property requires specific demolition and remediation procedures and should generally only proceed with specialist hazardous materials advice and a clear cost line in the feasibility.
13. Mine subsidence
The certificate must state whether the land is declared to be a mine subsidence district within the meaning of the Coal Mine Subsidence Compensation Act 2017 (NSW). Where the land is in a mine subsidence district, development is subject to additional approval from Subsidence Advisory NSW and the building design must meet mine subsidence engineering standards, which add structural cost and may constrain building form. For sites in the Newcastle, Hunter, and Illawarra mining districts the notation is typical; for unexpected metropolitan notations it warrants direct consultation with Subsidence Advisory NSW before completing acquisition.
14. Paper subdivision information
The certificate must state the name of a development plan adopted by a relevant authority that applies to the land or is proposed to be subject to a ballot, and the date of any subdivision order that applies to the land. The paper subdivision framework under Part 10 of the EP&A Regulation and Schedule 7 of the Act applies to a specific category of historical subdivisions where lots were created on paper without supporting infrastructure. The notation is rare but where it appears it materially constrains development until the paper subdivision is resolved through the formal process — typically via a development plan adopted by ballot.
15. Property vegetation plans
The certificate must state if a property vegetation plan is approved and in force under Part 4 of the (now-repealed) Native Vegetation Act 2003 (NSW), but only if the council has been notified by the approving body. PVPs are residual legacy instruments that may continue to apply to particular rural and peri-urban sites notwithstanding the broader transition to the Biodiversity Conservation Act 2016 (NSW). A PVP may impose ongoing land management obligations that survive transfer of title and can constrain clearing and development.
16. Biodiversity stewardship sites
The certificate must state if the land is a biodiversity stewardship site under a biodiversity stewardship agreement under Part 5 of the Biodiversity Conservation Act 2016, where the council has been notified. A stewardship site is effectively a conservation reservation with ongoing management obligations and limited or no development potential. Acquiring a stewardship-encumbered site for development is typically not viable; the notation, if unexpected, is grounds to withdraw.
17. Biodiversity certified land
The certificate must state if the land is biodiversity certified land under Part 8 of the Biodiversity Conservation Act 2016. Biodiversity certification — generally applied at a precinct or strategic-planning level — operates as a pre-clearance of biodiversity impact, with offsets paid upfront. For a developer acquiring within a certified area, this is generally favourable: the biodiversity impact assessment burden at DA stage is reduced. The implications need to be checked against the specific certification order and any conditions attached.
18. Orders under Trees (Disputes Between Neighbours) Act 2006
The certificate must state if an order has been made under the Trees (Disputes Between Neighbours) Act 2006 (NSW) to carry out work on a tree on the land, where the council has been notified. This is a niche disclosure but signals an active dispute with neighbours over a tree on the land, which may flow into the development assessment as an objection.
19. Annual charges for coastal protection services
The certificate must state, where the Coastal Management Act 2016 (NSW) applies, whether the owner has given written consent to the land being subject to annual charges under section 496B of the Local Government Act 1993 (NSW) for coastal protection services relating to existing coastal protection works. This is a coastal-site specific notation that flows through to the holding cost line — typically modest in absolute terms but indicating that the site is in an actively managed coastal protection regime.
20. Western Sydney Aerotropolis
The certificate must state whether, under Chapter 4 of State Environmental Planning Policy (Precincts—Western Parkland City) 2021, the land is in an ANEF or ANEC noise contour of 20 or greater, on the Lighting Intensity and Wind Shear Map, on the Obstacle Limitation Surface Map, in a public safety area, or in a wildlife buffer zone. For sites in the Western Sydney Aerotropolis precinct, the Chapter 4 controls may substantially constrain residential development, lighting design, height envelopes, and certain land uses. The detailed application is in the SEPP and the relevant maps; the certificate notation is the trigger to interrogate them.
21. Development consent conditions for seniors housing
The certificate must specify any conditions of a development consent granted after 11 October 2007 under Chapter 3 Part 5 of State Environmental Planning Policy (Housing) 2021 (the Housing SEPP) for seniors housing developments. This is relevant where the site has been the subject of a prior seniors housing consent — the conditions typically include restrictions on dwelling use, age-restricted occupation, and ongoing operational requirements that flow with the consent and may affect the redevelopment pathway.
22. Site compatibility certificates and affordable rental housing conditions
The certificate must state whether there is a current Site Compatibility Certificate (SCC) under the Housing SEPP (or a former SCC), the period of currency, and that a copy may be obtained from the Department. It must also state any conditions of consent of the kind referred to in sections 21(1) or 40(1) of the Housing SEPP (relating to affordable rental housing under Chapter 2 Parts 2 Divisions 1 or 5) or under clauses 17(1) or 38(1) of the (now-repealed but transitional) State Environmental Planning Policy (Affordable Rental Housing) 2009.
For a developer working under the Housing SEPP — including the in-fill affordable housing, boarding house, and co-living provisions — the affordable rental housing condition notation is critical. The conditions typically include a 10-year affordability covenant managed by a Registered Community Housing Provider, ongoing rental discount obligations, and reversion provisions if the affordable housing use is discontinued.
23. Water or sewerage services
The certificate must state if water or sewerage services are provided under the Water Industry Competition Act 2006 (NSW) by a licensed provider that is not a public water utility (i.e. Sydney Water or Hunter Water). For sites in newer development precincts where a private utility provides reticulated water and sewer, this notation flags the licensee arrangement and the fact that outstanding charges become the responsibility of the purchaser on settlement. For most metropolitan acquisitions the notation will be absent (the service is provided by a public utility); where present, the developer needs to confirm the service arrangement and the cost profile directly with the licensee.
24. Special entertainment precincts
The certificate must state whether the land is in a special entertainment precinct within the meaning of section 202B of the Local Government Act 1993. These precincts modify the noise and amenity controls applicable to entertainment uses — relevant for mixed-use, hospitality-adjacent, or amenity-sensitive residential acquisitions.
25. Interim development in future infrastructure corridors
The certificate must state, if section 4.7A of the State Environmental Planning Policy (Transport and Infrastructure) 2021 applies, any condition of a development consent that is a condition of Transport for NSW concurrence under that section. This is a corridor-protection mechanism for sites within future infrastructure alignments, and the conditions typically include limits on development quantum, build form, and recoverability against future acquisition.
The 2024–26 reform notations to look for
NSW planning reform between 2024 and 2026 has materially changed the controls applicable to sites within identified housing precincts, and several of the changes flow through to the certificate via matters 1, 2, and 22 in particular.
The Transport Oriented Development (TOD) Program, which commenced 13 May 2024 under Chapter 5 of the Housing SEPP, allows residential flat buildings up to 22m and shop-top housing up to 24m, with an FSR up to 2.5:1 and a minimum 2% affordable housing requirement, within identified precincts around 37 transport hubs. For sites within these precincts, the certificate should show the Housing SEPP as a relevant instrument under matter 1, and any prior affordable housing consent conditions under matter 22 will flow through. The actual TOD entitlements are in the SEPP itself; the certificate does not flag “this site is in a TOD precinct” as a specific notation, which means the developer needs to cross-reference the SEPP precinct mapping against the address.
The Low and Mid-Rise Housing Policy, with Phase 1 commenced 1 July 2024 and Phase 2 commenced 28 February 2025, similarly amended the Housing SEPP to permit a wider range of housing types — dual occupancies, manor houses, townhouses, and low-rise apartment buildings — within 800m of nominated town centres and transport hubs. The same observation applies: the Housing SEPP appears on the certificate under matter 1, but the specific Low and Mid-Rise eligibility requires cross-referencing the SEPP and the precinct mapping.
The Housing SEPP affordable rental housing provisions under Chapter 2 Parts 2 Divisions 1 and 5 — the in-fill and boarding house bonus pathways — produce condition notations under matter 22 where the site has been the subject of a prior consent under these provisions. A 10.7 certificate that notes section 21(1) or section 40(1) conditions in matter 22 is telling the developer that the site carries existing affordability obligations from a prior consent that may continue to bind the land.
For sites within the Western Sydney Aerotropolis, the SCC framework and Chapter 4 controls (matter 20) operate alongside the broader precinct planning. Developers acquiring in this geography should expect the certificate to surface multiple matter-22 SCC notations and matter-20 ANEF or OLS controls.
The discretionary section 10.7(5) advice — what to look for
The (5) advice is the part of the certificate that the council includes “on such other relevant matters affecting the land of which it may be aware”. Each council’s policy on what to include in the (5) advice differs, and the content is unstructured by comparison with the prescribed Schedule 2 matters. The categories that most commonly appear and that a developer should specifically look for are:
Sydney Water and other utility advice: under matter 23 the Schedule 2 disclosure is limited to private licensees under the Water Industry Competition Act. Public utility status — whether the site is currently connected, whether there is a Sydney Water major asset (sewer main, water main, easement) running through the site, whether a pressure-zone or wastewater system upgrade has been identified by the utility — typically appears (where it appears at all) in the (5) advice. A Sydney Water sewer easement crossing the site is a material constraint on building form and may require a Build Over Sewer (BOS) approval; the certificate is the first signal that this is in scope.
Roads and Maritime Services / Transport for NSW corridors and concurrences: a major road or corridor matter that is not yet formalised under matters 7 or 8 may surface in the (5) advice as agency commentary.
Council contaminated land policy and historical use indications: while matter 10 captures the existence of a council policy, the (5) advice may include the council’s specific advice on what is known about the historical use of the site, any prior assessment, or any management orders held on the council’s own register. Critically, this is the one category of (5) advice where section 10.7(6) does not provide council with the liability protection — the contaminated land carve-back means the council is liable for what it says (or omits) on this topic.
Voluntary planning agreements and section 7.4 arrangements: VPAs that affect the land may not always be captured in matter 3 (contributions plans) and frequently surface in the (5) advice. A VPA recorded against the land typically continues to bind successors and may include material contribution obligations.
Dwelling entitlement on rural-zoned land: for E2, E3, E4, RU1, RU2, RU4, RU5, and similar zones, the council’s view on whether the land has an existing dwelling entitlement (or whether one would need to be established under the LEP’s existing-dwelling clauses) is typically in the (5) advice. For a rural development feasibility, this is a foundational disclosure.
Burials on private land, septic / on-site sewage management notations, and aged unauthorised works: the catch-all for material disclosures that do not fit a specific Schedule 2 matter.
Coastal protection works and adaptation pathway advice: for sites under the Coastal Management Act, the council’s specific view on adaptation pathway and current management commitments typically appears here.
Heritage interim heritage orders and pre-listing considerations: where a property is not yet on the LEP heritage schedule but is the subject of a current investigation, an interim heritage order, or a council heritage assessment, the (5) advice is generally the first warning. This typically precedes a matter 2(g) heritage listing by 6–18 months and is a critical early indicator.
The general posture for a developer is: the (5) advice is read as a hazard log, not as a definitive statement. Where it surfaces a material concern, the response is independent verification — title search and deposited plan for easements, Sydney Water service location print for utility assets, direct EPA contaminated land register check, GIPA application for council file content — rather than reliance on the (5) statement alone.
The cost stack and the currency window
A 10.7(2) certificate from a NSW council in 2025–26 typically costs in the range of 70–90 AUD; a 10.7(2) and (5) typically costs in the range of 160–200 AUD. The Central Coast Council 2025/26 fee schedule prices the 10.7(2) at 71 AUD and the 10.7(2) and (5) at 178 AUD; City of Canterbury-Bankstown sits in a similar range. Urgency fees for 24-hour turnaround typically add 80–100 AUD on top. Standard processing times sit in the 5 to 10 business day band, with urgent processing typically next-business-day. Numerical figures here are indicative and may change; always confirm against the current council schedule at the time of application.
The currency considerations are layered. Under the Conveyancing (Sale of Land) Regulation 2022 (NSW), the vendor must attach a 10.7(2) certificate to the contract for sale, and most contracts include vendor warranties that the certificate “sets out the current status of the land”. Where the certificate is more than 6 months old at exchange, the customary buyer-side response is to require a re-issued certificate. For complying development purposes, most certifiers require the 10.7 certificate to have been issued within 3 months of CDC application, with the NSW Planning Portal CDC application guidance setting this as the operational standard.
For a developer running a pipeline of acquisitions, the practical implication is that the certificate is a perishable item. A site that exchanges in March on a January-dated certificate may need a re-issued certificate before the May DA lodgement, before the September CDC application, and before any settlement that occurs more than 6 months from the original date. Building a refresh cadence into the deal admin process — typically: order at offer, refresh at DA lodgement, refresh at construction certificate stage, refresh at any settlement event — keeps the deal hygiene clean at modest aggregate cost.
For a multi-site acquisition strategy the cumulative cost of certificates across the pipeline is genuinely small (a 10-site pipeline at 200 AUD per certificate and 3 refreshes per site is 6,000 AUD), and the relative cost of not having a current certificate at a key decision point — a vendor warranty failure, a CDC application bounce, a regulatory exposure on first inspection — is many multiples of that.
Triage: what to do when an adverse notation appears
A developer running a disciplined acquisition process will see most adverse notations before offer, through agent disclosure, prior council searches, or commercial property due diligence reports. The certificates that surprise — that arrive after offer and surface a previously unflagged issue — fall into a predictable set of categories, and the response framework is similar across categories. A useful first-pass triage:
Withdraw category: matter 7 reservation, matter 16 biodiversity stewardship, matter 14 paper subdivision (unresolved), matter 12 loose-fill asbestos (without specific contractual structuring). These are not amenable to feasibility variation within the deal timeframe; the rational response is to withdraw the offer or, if the cooling-off window allows, withdraw from exchange.
Re-price category: matter 2(g) heritage listing not previously disclosed, matter 8 road widening with significant area reduction, matter 9 flood notation in the flood planning area, matter 22 site compatibility certificate with binding affordability conditions on a non-affordable feasibility, matter 6 outstanding building rectification notice. These are amenable to feasibility variation but materially change the residual land value. The response is a re-priced offer or special condition relief, with the cost or value impact substantiated by a quick re-feasibility. Our sensitivity analysis guide describes how to structure the re-feasibility for an adverse disclosure scenario in a way that produces a defensible offer revision rather than a back-of-envelope number.
Investigate category: matter 4 CDC exclusion (assess whether the DA pathway is viable on the underlying feasibility), matter 10 contaminated land policy notation (commission Phase 1 ESA), matter 11 bushfire prone land (commission preliminary BAL assessment), matter 25 Transport for NSW concurrence condition (consult with TfNSW on the specific condition). These warrant further investigation but do not automatically reset the feasibility.
Proceed with note category: matter 1 in-force instruments (the baseline), matter 3 contributions (already in the feasibility), matter 5 exempt development (informational), matter 17 biodiversity certified land (typically favourable), matter 18 tree dispute order (typically narrow operational impact), matter 19 coastal protection charge (operational), matter 23 private utility (verify cost), matter 24 special entertainment precinct (depends on use).
The triage discipline matters more than the specific categorisation. The single most expensive class of acquisition outcome in NSW residential development is the deal that proceeds despite an adverse certificate notation that the developer “intends to deal with later” — typically a flood, heritage, contamination, or CDC-exclusion finding that gets pushed to the DA stage and then drives a fundamental re-feasibility halfway through holding cost.
For acquisition pipelines where the certificate is one document among many in the broader due diligence process, our property due diligence guide sets out how the certificate fits alongside title searches, deposited plans, 88B instruments, and the other documentary searches that together make up a complete NSW DD pack.
The legal protection under section 10.7(7) — and its limits
The “conclusively presumed to be true and correct” defence under section 10.7(7) is one of the more developer-friendly provisions in NSW planning law, and it is consistently under-used in practice. The defence operates for proceedings for an offence against the EP&A Act or the regulations. The principal categories of offence that a developer might face under the Act and where the defence is operative include: development without consent under section 4.2; development not in accordance with consent under section 4.22; non-compliance with a complying development certificate; non-compliance with an environmental planning instrument; and breach of various site-specific controls under SEPPs and LEPs.
Where a developer has obtained the certificate and acted in reliance on it, and the certificate either disclosed a particular matter (e.g. the applicable zone) or omitted to disclose a matter that would have been required under Schedule 2, the defence operates to preclude the council from arguing the contrary in subsequent proceedings. This is a meaningful defence — it shifts the regulatory exposure away from the developer where the council’s own disclosure was relied on.
The limits are worth understanding. The defence applies in favour of the person who obtained the certificate or who might reasonably be expected to rely on it. It does not extend to third parties who never received the certificate. It applies to offences against the EP&A Act and regulations — it does not provide a defence against actions in negligence, against actions under the Australian Consumer Law, against actions under the Contaminated Land Management Act (which has its own statutory framework), or against actions by private parties affected by the development. It also does not validate a development that exceeds what was actually disclosed: if the certificate said the site was zoned R2 and the developer built a residential flat building (impermissible in R2 in most LEPs), the certificate does not save the consent.
The section 10.7(6) carve-back for contaminated land advice means that the council is liable for what it says (or fails to say) in the (5) advice on contaminated land. This is the operational implication a developer should anchor on: if the certificate’s (5) advice on contamination is silent on a known contamination issue, the council’s liability protection is removed, and the developer’s reliance argument is stronger. This is one of several reasons why a 10.7(2) and (5) is materially more valuable to a developer at acquisition stage than a 10.7(2) alone.
How the certificate fits in the wider acquisition DD pack
A NSW developer’s acquisition DD pack typically includes, at a minimum: the section 10.7(2) and (5) certificate; a title search; the deposited plan (DP) and any subdivision plan; the section 88B instrument disclosing easements, restrictions, and positive covenants; a council building approval history; a Sydney Water service location print (or equivalent for other utility geographies); a basic contamination Phase 1 desktop assessment where matter 10 or the (5) advice raises any flag; and a heritage check for sites in conservation areas or near listed items.
The 10.7 sits as the planning anchor in this pack. The title search establishes what the developer is actually buying; the DP and 88B disclose the easements and restrictions; the 10.7 discloses what the planning system says about what can be built. Where the 10.7 and the 88B intersect — a site with a drainage easement under the 88B and a flood notation under matter 9, for example — the developer reads both documents together to understand the constraint envelope. For complex acquisitions involving multiple titles, partial site take, or staged subdivision, the 10.7 typically needs to be ordered per title.
The vendor-attached certificate in the contract for sale is the buyer’s contractual disclosure but should not be relied on alone. It may be months old, may be a 10.7(2) only, and may pre-date subsequent council resolutions or draft instrument exhibitions. Ordering a fresh 10.7(2) and (5) at offer stage is the developer’s own due diligence and the cost is trivial relative to the deal.
Frequently misunderstood points
The 10.7 is not a development approval. It is a disclosure of planning context. The certificate may say the site is in R3 with permitted dual-occupancy use, but it does not give consent to build a dual-occupancy. Consent comes from the DA or CDC process, against the controls in the LEP, DCP, and applicable SEPPs.
The 10.7 is not exhaustive. It discloses the matters prescribed by Schedule 2 plus whatever the council chooses to add under subsection (5). It does not disclose easements (those are on the title and the 88B), it does not disclose covenants (those are on the title), it does not disclose Sydney Water assets (those are on a service location print), it does not disclose any specific environmental site assessment finding (those come from a Phase 1 or Phase 2 ESA), and it does not disclose the building approval history (that comes from a separate council search).
A 10.7(2) is not enough at acquisition. The 10.7(2) is the statutory minimum required to be attached to the contract for sale. A developer running real DD needs the (5) advice. The marginal cost is 80–100 AUD; the marginal information is materially higher.
The certificate is not “old” if it pre-dates a planning reform. A certificate issued before the TOD Program commenced (13 May 2024) or before Phase 2 of the Low and Mid-Rise Housing Reform commenced (28 February 2025) does not retrospectively become inaccurate — the reforms apply prospectively. However, a certificate issued before those dates will not disclose the new Housing SEPP entitlements (the SEPP itself was already a relevant instrument under matter 1; the new chapter or amendments do not appear separately). A refreshed certificate is the prudent course for any site within an identified TOD or Low and Mid-Rise precinct.
Council does not verify the contract. The 10.7 is issued in response to a structured application; the council is not checking the application against the actual planning controls of the site or against the developer’s intent. The accuracy of the disclosure depends on the council’s underlying records being accurate, the application being completed correctly, and the prescribed matters being captured. This is generally accurate but is not infallible — the section 10.7(7) defence is precisely the protection against the council’s records being inaccurate.
When to escalate to legal advice
The section 10.7 certificate is generally a document a developer can read directly with the right framework. There are categories of notation where legal input is high-value:
- Heritage listings or interim heritage orders under matter 2(g) or in the (5) advice — particularly where the listing is recent or where the development intent is substantially demolition or alteration.
- Land reservation under matter 7 — particularly where the reservation post-dates a prior planning instrument and the compensation framework is unclear.
- Affordable housing conditions under matter 22 — particularly where the conditions are 10-year covenants administered by a Registered Community Housing Provider and the development intent is market-rate.
- Contaminated land management orders disclosed under matters 10 or 22 or in the (5) advice — particularly where the EPA register confirms a current declaration.
- Site compatibility certificates under matter 22 with attached conditions — particularly where the conditions modify the development entitlement.
- Voluntary planning agreements in the (5) advice with binding monetary obligations.
The general posture is that NSW planning legal advice is high-value where the disclosure is binding (a recorded consent condition, a registered covenant, an EPA-issued order) and lower-value where the disclosure is informational (an advisory notation in the (5) advice that the developer can verify directly through primary records).
Practical tools and the feasibility integration
For a developer running adverse-notation re-feasibility scenarios, the 10.7 disclosure feeds directly into the input lines of the development model. A flood notation pushes the slab elevation and basement cost line; a bushfire notation pushes the construction premium and APZ-driven yield reduction; a road widening notation reduces the developable area; a contributions notation refines the per-dwelling levy line; an affordable housing condition shifts the saleable revenue line. Each of these is a sensitivity scenario that should be modelled before the offer is finalised, not after.
Feasibility software designed for NSW property development should handle these scenarios as configurable inputs — Feasly’s sensitivity analysis layer is built to flex the saleable area, the build cost premium, the contributions line, and the affordable housing revenue treatment across multiple scenarios simultaneously, with the residual land value calculated to current acquisition equivalency. The 10.7 certificate is the trigger for the scenario inputs; the modelling is the calculation of what each disclosure does to the land value the developer can responsibly pay. Together they are the most cost-effective acquisition discipline in NSW residential development practice.
The certificate is the planning system’s structured disclosure of constraint. It is not perfect, it is not exhaustive, and it is not free of interpretation — but it is the most reliable single document a NSW developer has at acquisition, it carries a statutory presumption of accuracy in the developer’s favour, and at 200 AUD a site there is no reason not to order it at offer stage. Read systematically against Schedule 2 with the discretionary (5) advice integrated, it is the foundation of every well-run NSW acquisition.