This important decision of the Land and Environment Court of New South Wales on 30 April 2020 will impact NSW local councils.

This case also goes a long way in clarifying the implications for NSW local councils rejecting proposed development applications (DAs) due to non-compliance with the technical requirements of the Environmental Planning and Assessment Regulation 2000 (NSW) (the Regulation).

It also reverses the earlier decision of the Court in Parkes v Byron Shire Council (2003) 129 LGERA 156 (Parkes), removing the argument that the Court has the power under s39(2) of the Land and Environment Court Act 1979 (NSW) (LEC Act) to provide landowner consent where a council rejects a development application due to lack of landowner consent and the council is the landowner from which the consent is required.

Background

The proceedings related to the rejection by Lake Macquarie City Council (Council) of a DA by the Applicant, Johnson Property Group Pty Limited, in respect of construction of cycleways and intersection improvement works. The development was proposed to be carried out on an area of land owned by a third party as well as on public roads owned by the Council as roads authority.

The DA was accompanied by landowner consent for the privately-owned land; however, Council’s owner consent was not provided for the public road area. The DA was rejected prior to acceptance on the basis that consent from all relevant landowners (namely, both the private owner and the Council) had not been provided as required by clause 51 (1)(b) and Part 1 of Schedule 1, Cl 1(i) of the Regulation.

The Applicant requested a review of the Council’s rejection of the DA pursuant to s8.2(1)(c) of the Environmental Planning and Assessment Act 1979 (NSW) (the Act). The review application was refused.

The question in these proceedings was whether the decision by the Council to reject the Applicant’s DA was subject to a right of appeal.

Submissions

The Applicant submitted that the Council’s decision could be appealed because the decision to reject was subject to a right of review pursuant to the provisions of s8.2(1)(c) of the Act. Also, the Applicant asserted that not changing the decision to reject the DA on review gave rise to a right of appeal pursuant to s8.6 and/or s8.7 of the Act.

The Applicant relied on the Land and Environment Court of NSW decision in Parkes where Lloyd J determined that a decision to reject a DA was such that a right of appeal to the Court was available.

The Applicant also submitted that Council had no power to reject the DA as:

• landowner consent had been provided for all of the privately-owned land, and
• it was beyond the Council’s power to reject the whole of the DA where the asserted deficiency related to only one aspect of the DA that could be cured at any time prior to the grant of development consent.

The Council submitted that on a proper construction of s8.6(1) and s8.7(1) of the Act, an appeal was limited to a ‘determination’ rather than a ‘decision’. It argued that a determination is made pursuant to s4.16 of the Act to either refuse or approve a DA, while the rejection of a DA is considered a decision and operates such that the DA has never been made.

Decision

The Court decided that the Applicant did not have a right of appeal against the rejection of the DA.

Her Honour agreed with the position adopted by the parties that the only Division of the Act which could relate to the rejection of the DA was Part 6 Division 8.3. Her Honour saw further that the determination of the question before the Court turned on the construction of s8.6 and s8.7 of the Act.

Section 8.6(1) of the Act provides that a decision of a consent authority under Part 4 of the Act in relation to a development consent application or a development consent is (if the Division so provides) subject to appeal to the Court.

The Court saw that in order that the Division operates to confer a right of appeal, s8.6(1) requires that the following factors are present:

1. There must be a decision of a consent authority under Part 4
2. That decision must relate to an application for development consent, or a development consent, and
3. The Division must make provision for the appeal.

The Council’s decision to reject the DA was found to be a decision of a consent authority under Part 4.

The Council’s decision was also seen to be related to a development consent application or a development consent as the particular wording of s8.6(1) extended the reference to matters that have a relationship to, but do not necessarily comprise, a DA (such as a rejected DA).

The final requirement (that Division 8.3 provides for the identified decision to be the subject of a right of appeal) was seen to be lacking in that neither s8.6(2) nor s8.7 conferred a right of appeal in the circumstances of a rejection of a DA.

Her Honour found that s8.6(2), in conjunction with s8.6(1), does not confer an independent right of appeal from all decisions made after a review, but provides a right of appeal where it is otherwise conferred by Division 8.3 of the Act. Section 8.7(1) was also found not to confer a right of appeal in the present case, as that section only allowed appeals from determinations to approve or refuse the DA once made and not to reject the making of the application.

In dealing with the final aspect of the Applicant’s case, the Court found that the decision in Parkes was distinguishable due to subsequent amendments to clause 51 of the Regulation and was otherwise not correct and should not be followed.

Of particular note is that the Court in this Johnson case has found that where there is no right of appeal from the rejection of the DA, there is also no appeal to which the Court’s powers under s39(2) of the LEC Act to grant landowner consent in place of the Council are to be exercised.

Jim Griffiths, Partner of Moray & Agnew acted for Lake Macquarie City Council in the above matter.