NSW Land and Environment Court offers clarification on NSW Deemed Refusal appeal times - Construction & Planning

A recent decision by the NSW Land and Environment Court in Australian Consulting Architects Pty Ltd v Liverpool City Council¹ has highlighted the complex task of properly reckoning the passage of time under the deemed refusal provisions of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).

On 2 October 2015, Australian Consulting Architects P/L (ACA) lodged a development application (DA) with Liverpool Council (Council).

Over a year later, on 14 October 2016, before Council determined the DA, ACA filed a Class 1 Application with the NSW Land and Environment Court (Court) challenging Council's deemed refusal of the DA.² A 'deemed refusal' occurs when a development application is not determined within the prescribed assessment period.³ For the ACA DA, the assessment period was 62 days from 2 October 2015.⁴

Council sought to have the appeal dismissed as being out of time.⁵

STOPPING THE CLOCK

Under clause 110 of the Environmental Planning and Assessment Regulation (2000) (NSW) (Regulation), if a 'concurrence authority' requests additional information concerning a DA, the 'clock' recording the assessment period for that DA is stopped until two days after the concurrence authority receives the requested information.

ACA argued that Roads and Maritime Services (RMS) was a 'concurrence authority' for the purposes of the DA because of the State Environmental Planning Policy (Infrastructure) 2007 (ISEPP). On 30 November 2015 RMS had submitted a request to Council for further information about the DA. The requested information was provided on 4 May 2016 and ACA submitted that the clock should therefore have been stopped from 30 November 2015 to 6 May 2016.

The Court rejected ACA's argument, because RMS was not a concurrence authority. This was because Council was only required to consider RMS's response to the DA; it was not required to obtain RMS's concurrence.

Under the ISEPP, Council could have approved the development application 'in the face of the most strident protestations of the RMS, so long as RMS' response was taken into consideration'.⁶ RMS was not, therefore, a concurrence authority in this case.

RESETTING THE CLOCK

ACA then argued that there were four occasions on which it had amended its DA, and on each of those occasions the assessment period clock should have been reset.

The question for the Court was whether the amendments to the DA were actual amendments under clause 55 of the Regulation. The Court said that for clause 55 to apply, there must be 'certainty with respect to any material amendment or variation [of DA's].'⁷ In other words, 'floating hypothetical options or conceptual alternatives ... 'testing the water' ... will not satisfy the clause 55 requirements of an amendment or variation to a DA.'⁸

While communications that merely 'test the water' will not amount to a formal DA amendment under clause 55, the Court emphasised that applicants are 'wholly entitled to constructively work with a consent authority towards formally amending a proposal by, for example, engaging in a productive, iterative exchange of email correspondence canvassing alternatives and seeking feedback.'⁹

Ultimately, however, that process must result in a concrete proposal put forward as a replacement to what went before which is actually accepted by the Council as an amended DA.¹⁰

None of the purported amendments to the ACA DA reached the 'requisite degree of certainty and finality' and, even if they had, they never received the express or implied agreement of Council as required by clause 55(1) of the Regulation.¹¹

THE OUTCOME AND WHY IT MATTERS

The Court held that ACA failed in its arguments concerning the stopping and resetting of the clock. Observing that the result might be harsh on ACA, the Court held that it had no jurisdiction and was bound to dismiss the appeal as incompetent.

When amendments are made to a DA, developers should request the consent authority's formal agreement to the amended DA under Clause 55 of the Regulation.

The decision in Australian Consulting Architects Pty Ltd v Liverpool City Council also highlights the importance of correctly characterising the role of other authorities. Statutory language must be carefully analysed to determine whether a body is in fact a concurrence authority.

Footnotes

¹(2017) 226 LGERA 406.

² This case was argued and determined under the EPA Act as it stood before substantial amendments were made by the Environmental Planning and Assessment Amendment Act 2017 (NSW) on 1 March 2018. In this article we cite EPA Act provisions as they appear in Molesworth AJ's judgment. Footnote references are made to corresponding post-amendment provisions. Pre-amendment section 97 broadly corresponds to post-amendment sections 8.7 and 8.10.

³ Pre-amendment: EPA Act section 82; post amendment: EPA Act section 8.11.

⁴ Environmental Planning and Assessment Regulation 2000 (NSW) clause 113(b)(ii).

⁵ Post amendment: EPA Act section 8.10.

⁶ At [121].

⁷ At [131].

⁸ At 134].

⁹ At [134].

¹⁰ At [132].

¹¹ At [144].

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