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Planning Agreements not always needed to dedicate land

What is qualified title? Before the introduction of Torrens title in NSW, all land was either Crown land or Old System land. Old System was a cumbersome system in which you had to show an unbroken chain of ownership all the way back to the original grant before you could transfer ownership of Old System land. The Torrens title introduction of the Torrens Register changed all this. When Old System title is converted into Torrens title (either by registration of a deed or a plan) and recorded on the Torrens Register, sometimes the Registrar General will record a “Caution” on the title. All Qualified titles carry a caution notification in the Second Schedule pursuant to s28J(1), s28J(1A), or s28J(1B) Real Property Act 1900 warning any person having an interest in or dealing with the land that subsisting interests not recorded on the Qualified folio of the Register may exist. The type of caution depends on the circumstances of conversion and has no affect on dealings lodged. This means that there may be unregistered interests in the land that may not show up on the title, for example an unregistered easement or lease. A caution can be removed from the title, hence converting the qualified title into a full Torrens title in a number of methods. The method chosen will depend on how long you have owned the land. What is limited title? Where the boundaries of Old System land are not properly defined, the Real Property Act 1900 allows for conversion from Old System title to a Limited folio of the Torrens Register. A Limited folio may be created and a notification is recorded in the Second Schedule of the folio of the Register: where the title is also Qualified: 'Limited Title. Limitation pursuant to s28T(4) of the Real Property Act 1900 . The Boundaries Of The Land Comprised Herein Have Not Been Investigated By The Registrar General' or where the title is not Qualified: 'Limited Title. Limitation pursuant to s28T(1A) of the Real Property Act 1900 . The Boundaries Of The Land Comprised Herein Are Not Sufficiently Defined To Enable The Creation Of An Ordinary Folio Of The Register'. The limitation has no effect on the registration of dealings and may be removed by lodgment of a plan of survey. Note A folio may be both Limited and Qualified. Require further assistance? We have assisted many landowners remove this caution from the title to their land. If you require advice or assistance with qualified title or limited title, we can help you understand the limitations on your title and provide advice about what you can do about it.

An introduction to the NSW Biodiversity Offsets Scheme for landowners

If your development application (DA) has been sitting with Council for a long time (deemed refusal) or has actually been refused (actual refusal) this article can help you understand your options, the process involved and how you can navigate the planning process more effectively.

Usually, the height of building control takes the form of clause 4.3 in most local environmental plans: “4.3(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.” The Height of Buildings Map will (usually) prescribe a maximum height, for example 8.5 metres or 12 metres. The “height of a building” is defined in the Standard Instrument as: “ building height (or height of building) means— (a) in relation to the height of a building in metres—the vertical distance from ground level (existing) to the highest point of the building, or (b) in relation to the RL of a building—the vertical distance from the Australian Height Datum to the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like”. (our emphasis) Accordingly, the highest point of a building (excluding lift overruns etc) must not be higher than the specified height (eg 8.5m) above the existing ground level. Existing ground level is defined in the Standard Instrument as: “ ground level (existing) means the existing level of a site at any point.” Determining the ground level (existing) can be challenging where excavation has occurred on the site, where the site contains irregularities or where an existing building occupies the entire site. These challenges and how they have been dealt with in the NSW Land and Environment Court ( Court) are illustrated in the cases below. Land that has been excavated or built upon Bettar v Council of the City of Sydney [2014] NSWLEC 1070 ( Bettar ) Facts Consent was sought for a four and five storey residential flat building. An existing building occupied the entire site such that there was no longer any “ground” on the site from which “ground level (existing)” could be measured. Council submitted that the ground level (existing) should be the ground floor of the existing building. The Applicant submitted that the ground level (existing) ought to be extrapolated from the footpath and surrounding levels on neighbouring sites, rather than the ground floor of the building. Decision The Court held that once the existing building was demolished it would be impossible to determine the natural ground level and the former building on the site could no longer be discernible or relevant as a starting point for measuring the height of any new building. It would be conceivable that surrounding properties (each with existing buildings already built upon them) could end up with a variety of different height limits arising under the same development standard. Further, the Commissioner held that Council’s approach would result in an absurd height plane which would relate only to an existing building and have no relationship to the context of the site and its surrounds. Adopting the Applicant’s suggested approach of extrapolating from the footpath and surrounding sites, the Commissioner held (at [47]): “the level of the footpath at the boundary bears topography that includes the site, and remains relevant once the existing building is demolished.” Accordingly, the approach proposed by the Applicant was considered a pragmatic method to determine ground level (existing) and has since become informally known as the “extrapolation method”. Key Takeaways Where an existing building occupies the entire site, it may be acceptable to extrapolate ground level (existing) from the level of the footpath at the boundary of the site and from levels on surrounding sites. This is particularly preferable where determination of ground level (existing) from existing buildings would result in an inconsistent and irregular height blanket across a neighbourhood under the same development standard. Stamford Property Services Pty Ltd v City of Sydney [2015] NSWLEC 1189 ( Stamford Property ) Facts Consent was sought for the partial retention and adaptive reuse of an existing building and construction of a 19 storey building with basement parking. Similar issues regarding the determination of existing ground level arose as in Bettar , although on a much larger site with a steep gradient. Calculating ground level (existing) with regard to existing built form, particularly basement levels on the site would result in irregular and inconsistent height controls across the site. Decision The Court accepted the Applicant’s use of the Bettar extrapolation method to arrive at ground level (existing). In the circumstances, limited survey information was available and highly developed surrounding sites in the Sydney CBD made extrapolation difficult. Nevertheless, the Court noted that the extrapolation method was still possible with limited information and that there was sufficient actual and surveyed levels from the public domain in this case to arrive at a ground level (existing) figure for the (excavated) centre of the site, being an average between two survey points, rather than a surveyed (excavated) ground level. The Commissioner(s) held at [285]: “… In our view, [the extrapolation method] … provides a practical operation to the definition [of ground level (existing)], both for a greenfield site and, as here, modified site in a built environment. It places the proposed building in its context, rather than relying on the present built form of any existing development on a site”. Further, at [286]: “Reliance on the existing built form … means that circumstances such as the extent of excavation from site to site could lead to different height limits applying to adjoining buildings on redevelopment of any of those sites. On the information available for the site, application of Bettar results in a sloping plane across the site, and we agree … that that reflects the relationship of the proposed development to the overall topography that includes the site.” Key Takeaways The “extrapolation method” is to be preferred where it can better place the proposed building in its context, rather than relying on the present built form of any existing development on a site. The availability of survey information needed to apply the “extrapolation method” may vary from site to site and may include surveyed levels in the public domain, with a figure in the centre of the site being an average between two surveyed points rather than a surveyed ground level. Land that has not been completely built out or excavated Strebora Pty Ltd v Randwick City Council (No. 2) [2017] NSWLEC 1575 ( Strebora ) Facts Consent was sought for a four storey residential flat building over basement carparking on a site on which a residential dwelling (well set back from all boundaries) had previously stood. The Applicant contended that ground level (existing) should be determined by reference to levels from the street frontage rather than existing areas over parts of the site. The Applicant proposed taking the ground level at the street frontage and projecting that as a height plane across the site in elevations and sections. Council contended that this approach was not usual practice and was not consistent with what was required by the LEP definition, particularly where survey information providing limited spot levels on the site showed that the ground level (existing) was beneath the Applicant’s projected height plane. Decision The Court held that the “extrapolation method” (from Bettar ) was not directly applicable and was not appropriate in the circumstances. Because the residential dwelling had not occupied the entire site, there were patches of ground within the site that could be used to reference ground level (existing) and these were at street level. Further, the fall in the site also meant that it was not appropriate to determine the maximum allowable height from ground levels at the street frontage. Central to the Court’s finding is the notion that the determination of ground level (existing), must bear some relationship to the overall topography and context of the site. The Commissioner held at [58]: “In these proceedings there are no facts that would preclude the applicant determining the lowest level on an existing site directly beneath the highest part of the proposed development, to determine a maximum building height dimension. In Bettar v Council of the City of Sydney the levels at the street/footpath were taken due to the fact that a building occupied the full extent of the land. This is not the case in these proceedings. I note at paragraph [37] Commissioner O’Neil recognises “that the determination of the existing ground level should bear some relationship to the overall topography that includes the site.” Given the fall across the land it is not sufficient to only determine the maximum height of the building at the street.” Key Takeaways The “extrapolation method” used in Bettar and Stamford Property cannot be used to arrive at artificial height planes across a site where parts of the site may be surveyed to give the existing ground level. The determination of ground level (existing), must bear some relationship to the overall topography and context of the site and the “extrapolation method” may not be used where it would result in an artificial height plane that does not bear a relationship to the overall topography and context of the site. Gejo Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1712 ( Gejo ) Facts Consent was sought for construction of a 6-storey mixed-use building over two levels of basement carparking. The subject sites contained two existing dwelling houses and had not been extensively excavated or built upon. The sites were irregular and contained an unusual low point which gave rise to an irregular height blanket when applying the height controls in the LEP. The Applicant contended that the irregular characteristics of the site meant that the method of calculation used in Stamford Property and Bettar should be applied in preference to the usual method of taking the lowest level on an existing site, as shown on the site survey, directly beneath the highest part of the proposed development. Decision The Court did not accept the method proposed by the Applicant, instead finding that the height of the proposed buildings should first be determined by applying the LEP controls. In circumstances where the site had not been extensively excavated and the ground level was known and able to be surveyed, the Commissioner held that the height of the building should be determined by the usual method. With respect to unusual slopes or grades and abnormal depressions in the site giving rise to unusual height limits, the Commissioner held at [25]: “I do not accept that the method used by the Commissioners to calculate the ground level (existing) in Stamford Property Services Pty Ltd v City of Sydney and Bettar v Council of the City of Sydney overrules, or intends to overrule, the definitions contained in the relevant LEPs. This is clear from the comments in the joint judgment of Commissioner Pearson and Acting Commissioner Smithson at [283] of Stamford Property Services Pty Ltd v City of Sydney , in which they stated “the actual height of the proposed building must first be determined, by application of the 2012 LEP definitions.” The task undertaken by the Commissioners in those decisions is one whereby they found a way to apply the definitions contained in the LEPs in circumstances where the existing ground level is not known due to extensive development on the site. Given that there has been no extensive excavation of the site the subject of the current proposal, and the ground level is known and can be surveyed, the method used in those cases for calculating the ground level (existing) is irrelevant. Instead, the usual method of taking the lowest level on an existing site, as shown on the site survey, directly beneath the highest part of the proposed development reflects the definitions in the CLEP 2012 and should be used to calculate the building height. The fact that there is an uncharacteristic depression on the site is not relevant to this calculation, but might be relevant to the request to vary the height control considered below.” Key Takeaways Where ground level (existing) can be determined because the site has not been excavated or built upon, the extrapolation method is not intended, and should not be used to overrule the definitions contained in the relevant LEP’s. The fact that there are uncharacteristic depressions or irregularities on a site are not relevant to the calculation of building heights but will be relevant to a clause 4.6 request to vary the height controls. Nicola v Waverley Council [2020] NSWLEC 1599 ( Nicola ) Facts Consent was sought for internal alterations and additions to a residential dwelling which included the addition of a new stair access with glass enclosure to the roof level and a new 15m 2 rooftop terrace. An existing slab on the site made the determination of the ground level (existing) difficult. The Applicant contended that levels should not be taken from the existing slab and the extrapolation method should be used to take levels from the closest immediate proximity on the site where existing ground levels could be accurately determined. Council disagreed and argued that the use of the extrapolation method was inappropriate as the site had not been completely built out (as in Bettar and Stamford Property ). The difference in competing interpretations determined whether the new addition of the glass stair enclosure was compliant with the height control. Decision The Commissioner preferred the Applicant’s interpretation and held at [37] that the extrapolation method could be applied, even in circumstances where the site had not been completely excavated or built out: “I agree … that the “extrapolation method” should be applied, based on the approach of selecting the levels located closest to the proposed stair enclosure. This is not inconsistent with the principle applied in Bettar and Stamford Property, which by necessity had to rely on the footpath levels outside the property boundaries because the buildings, in those cases, occupied the whole of their respective sites. In the subject development proposal the known ground levels identified are also outside the building and also closest to its exterior walls. The fact they are located within the site’s property boundaries, as opposed to outside the boundaries and on the footpath, does not derogate from the key selection criteria of closest immediate proximity.” Key Takeaways Where determination of ground level (existing) is made difficult by existing foundations or footings, it may be appropriate to use the extrapolation method either by obtaining levels from adjacent sites or within the site itself. Where the particular circumstances of the case warrant the use of the extrapolation method, the levels to be used should be taken from the closest immediate proximity where existing ground can be found, whether that be within the site’s boundaries or outside the boundaries. Summary Where an existing building occupies the entire site, it may be acceptable to extrapolate ground level (existing) from the level of the footpath at the boundary of the site and from levels on surrounding sites. This is particularly preferable where determination of ground level (existing) from existing buildings would result in an inconsistent and irregular height blanket across a neighbourhood under the same development standard. The extrapolation method is to be preferred where it can better place the proposed building in its context, rather than relying on the present built form of any existing development on a site. The availability of survey information needed to apply the “extrapolation method” may vary from site to site and may include surveyed levels in the public domain, with a figure in the centre of the site being an average between two surveyed points rather than a surveyed ground level. However, the determination of ground level (existing) must bear some relationship to the overall topography and context of the site and the extrapolation method may not be used where it would result in an artificial height plane that does not bear a relationship to the overall topography and context of the site. Where ground level (existing) can be determined because the site has not been excavated or built upon, the extrapolation method is not intended, and should not be used to overrule the definition and controls contained in local environmental plans. The fact that there are uncharacteristic depressions or irregularities on a site are not relevant to the calculation of building heights but will be relevant to a clause 4.6 request to vary the height controls. Where determination of ground level (existing) is made difficult by existing foundations or footings, it may be appropriate to use the extrapolation method either by obtaining levels from adjacent sites or within the site itself. Where the particular circumstances of the case warrant the use of the extrapolation method, the levels to be used should be taken from the closest immediate proximity where existing ground can be found, whether that be within the site’s boundaries or outside the boundaries. Require further assistance? We have assisted many clients with issues relating to the determination of ground level (existing) and thus the applicable maximum building height of their proposed development. Often this can be a simple matter of engaging in constructive consultation with the relevant local council, or alternatively, bringing the matter before the Court for determination. If you require advice regarding the determination of ground level (existing) of your site, or you wish to appeal against a determination of the issue by your local council, we can assist you in this process.

Landowners often have questions about their rights under an easement. If you are interested in this topic, you should check out our other articles on easements ( Part 1 and Part 2 ). This article explores ancillary rights to do work on burdened land.

Power to modify is subject to constraints There are a number of sources of power to modify a development consent under s 4.55 of the Environmental Planning and Assessment Act 1979 ( EPA Act ): Modifications to correct a minor error, misdescription or miscalculation: s 4.55(1); Modifications involving minimal environmental impact: s 4.55(1A); and Other modifications: s 4.55(2). Sections 4.55(1A) and (2) of the EPA Act empower a consent authority to modify a development consent, provided the consent authority is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all). What does substantially the same mean? Unfortunately, there is no clear, simple answer. Like many things in life, and in planning law, the answer depends a lot on the circumstances of each case. However, there are some guiding principles that can be drawn from the case law. “The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is “essentially or materially” the same as the (currently) approved development. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).” Moto Projects No 2 Pty Limited v North Sydney Council [1999] 106 LGERA 298 per Bignold J at [55]-[56]. Principles from case law 1. First, the essential elements to be identified are not of the development consent itself, but of the development that is the subject of that development consent. The comparison required by s 4.55(2) of the EPA Act is between two developments: the development as modified and the development as originally approved: Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333 at [16]. 2. Second, the essential elements are not to be identified “from the circumstances of the grant of the development consent”; they are to be derived from the originally approved and the modified developments. It is the features or components of the originally approved and modified developments that are to be compared in order to assess whether the modified development is substantially the same as the originally approved development: Arrage v Inner West Council [2019] NSWLEC 85 per Preston CJ at [25] 3. In approaching the comparison exercise, one must not fall into the trap of thinking that because the development was for a particular use and, as amended it will be for the same use, it is therefore substantially the same. Essential and material features 4. A common method to identify whether the modified development is substantially the same is to consider whether the modified development is “essentially or materially” the same or “has the same essence” as the originally approved development. This test derives from the dicta of Bignold J in Moto Projects No 2 Pty Limited v North Sydney Council [1999] 106 LGERA 298 ( Moto Projects ). “The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is “essentially or materially” the same as the (currently) approved development. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).” However, caution should be applied here. This test derives from judicial interpretations of the statutory test, not the language of the statute itself. The language of the statute (and thus the test) is: “(a) [the consent authority must be] satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all)…” In Arrage , Preston CJ held at [28] (referring to the Moto Projects “test”): “That is one way, probably in most cases the most instructive way, to identify whether the modified development is substantially the same development as the originally approved development, but it is not the only way to ascertain whether the modified development is substantially (in the sense of essentially or materially) the same development as the originally approved development. For example, comparison could be made of the consequences, such as the environmental impacts, of carrying out the modified development compared to the originally approved development: see Moto Projects at [62] and Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351; [2003] NSWLEC 253 at [17].” So while the “essential and material features” test is a good guide, it will not always be the best test to apply. To understand this better, it is helpful to review some of the cases in which the question has arisen and the factual circumstances of each case. Case law Moto Projects No 2 Pty Limited v North Sydney Council [1999] 106 LGERA 298 Facts The original consent was granted (by the Court) in 1998 to refurbish the existing North Sydney Club premises and add four to six floors to the existing building to provide for 48 residential apartments. The Applicant sought to modify the development consent by altering the vehicular access requirements by removing conditions of the consent relating to a vehicular ramp for entering traffic to the club premises. Council argued that the modification application should fail because the Court could not be satisfied that the development was substantially the same development. That is, the alteration to the access arrangements was so material and fundamental that it altered the development to such an extent that it was no longer substantially the same. The Applicant argued that the modified development would be substantially the same as the original development since: the relevant comparison yields precisely the same components of the redevelopment, namely (i) a refurbished club; (ii) an addition comprising 48 residential flats; and (iii) the existing on-site carparking provision, the only difference being the elimination of the access ramp for vehicular traffic to the club’s on-site carparking provision from the Warringah Expressway and instead of that arrangement, an accommodation of that entering traffic within the Walker Street right of way (ROW). Findings Bignold J held that the Walker Street ROW (access arrangement) was a material and essential feature of the approved development and its removal meant that the modified development could not be considered to be substantially the same. The modification application was refused. Importantly, Bignold J held that the assessment needed to be both qualitative as well as quantitative. Applicants cannot simply point to numerical comparisons in a vacuum or a “broader picture” which omits important material details of the development. 55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is “essentially or materially” the same as the (currently) approved development. 56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted). 64. Although it is well established that the comparative task required to be undertaken to satisfy the requirement of s 96(2)(a) involves a comparison of the whole of the developments being compared, that fact does not eclipse or cause to be eclipsed a particular feature of the development, particularly if that feature is found to be important, material or essential. This approach is exemplified in the decision of Talbot J in The Satellite Group (Ultimo) Pty Ltd v Sydney City Council (unreported 2 October 1998) where Talbot J held that the statutory modification power was not available because his Honour had not been satisfied that the development as proposed to be modified would be substantially the same as the currently approved development. … 68. I would respectfully agree with his Honour’s views. They have obvious application to the facts of the present case, where the only change involves the elimination of the separate ramp access from Warringah Expressway providing exclusive vehicular ingress to the Club’s on-site carparking provision, where for the reasons I have given, that access arrangement was a material and essential feature of the approved development. 69. Its entire elimination, with the consequence of all traffic to the redevelopment having to use the Walker Street ROW, materially changes the approved development to such an extent, that I am not satisfied that the modified development is substantially the same as the currently approved development. Key Takeaways The result of the comparison between the modified development and the original development must be a finding that modified development is “essentially or materially” the same. The assessment needs to be both qualitative and quantitative comparison of the development in its proper context. Key elements of the original development need to be considered and a “big picture” justification of the development as a whole, omitting material details, is not correct. Arrage v Inner West Council [2019] NSWLEC 85 Facts The Applicant sought to modify a consent for shop-top housing at Dulwich Hill pursuant to 4.55(2) of the EPA Act. Council refused the application. The appeal was heard by a Commissioner of the LEC who refused the application and dismissed the appeal on the grounds that he was not satisfied that the development was substantially the same as the development for which consent was granted. The Commissioner identified that the proposed modification would result in the following quantitative changes: a 30% increase in the number of residential units (from 13 units to 17 units); a 19.25% increase in the floor space ratio (“FSR”) for the modified development; a 13.5% increase in building height (from 22.3m to 25.3m); a 14.3% increase in the number of storeys (from a part 5/part 6 storey development to a part 6/part 7/part 8 storey development); a 17.3% (25.1sqm) reduction in common open space (from 145.1sqm to 120sqm); and a 100% (42.53sqm) reduction in internal communal room space (all of the internal communal room space would be removed by the proposed modification). The qualitative changes that the Commissioner identified were the changes from having a mix of internal communal room space and outdoor communal open space to only having communal open space and from reducing in total the communal space available, which changes qualitatively altered the utility of the communal space. Arrage appealed the Commissioner’s decision. His Honour Preston CJ dismissed the appeal (and upheld the Commissioner’s decision) for the following reasons. Findings [18] … The “test” the Commissioner was obliged to apply was not some dicta of Bignold J in Moto Projects, but rather the statutory provision of s 4.55(2)(a) of the EPA Act. Judicial decisions interpreting similar or identical legislative provisions may guide, but cannot control, the meaning of the legislative provision to be construed and applied by the Court. Judicial decisions are not substitutes for the text of the legislation, although by reason of the doctrine of precedent and the hierarchical nature of the court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 at [31]. [19] Bignold J did suggest in Moto Projects that the comparative exercise required by the former s 96(2), now s 4.55(2), of the EPA Act involves a comparison of the proposed modified development and the originally approved development “in their proper contexts (including the circumstances in which the development consent was granted)”, but this did not substitute a different or additional test for the test imposed by the statutory provision giving the power to modify a development consent. The test remained that stated in the statutory provision that the modified development “is substantially the same development” as the originally approved development. [20] Accordingly, the Commissioner was not bound by the terms of s 4.55(2)(a) to compare the modified development and the originally approved development “in their proper contexts (including the circumstances in which the development consent was granted)”. Insofar as the Commissioner might be seen not to have given consideration to the circumstances in which the development consent was granted, that did not involve him failing to apply the correct test: he was not obliged in law to do so. [24] First, the essential elements to be identified are not of the development consent itself, but of the development that is the subject of that development consent. The comparison required by s 4.55(2) is between two developments: the development as modified and the development as originally approved: see Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [16]. [25] Second, the essential elements are not to be identified “from the circumstances of the grant of the development consent”; they are to be derived from the originally approved and the modified developments. It is the features or components of the originally approved and modified developments that are to be compared in order to assess whether the modified development is substantially the same as the originally approved development. [26] The choice of language in the judicial decisions of “material and essential features” or a “material and essential physical element” of the development (see, for example, Moto Projects at [58], [59] and [64]) derives from judicial interpretations of the statutory test that the modified development be “substantially the same” development as the originally approved development. In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, p 2 Stein J interpreted the word “substantially” in the former s 102(1)(a) of the EPA Act to mean “essentially or materially or having the same essence”. That interpretation of the word “substantially” was accepted in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 by Mason P (with whom Sheppard AJA agreed at 403) and at 481-482 by Stein JA and in Moto Projects by Bignold J at [30] and [55]. [27] This interpretation of the statutory test that the modified development be substantially the same development as the originally approved development, that the modified development be “essentially or materially” the same or “having the same essence” as the originally approved development could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry. [28] That is one way, probably in most cases the most instructive way, to identify whether the modified development is substantially the same development as the originally approved development, but it is not the only way to ascertain whether the modified development is substantially (in the sense of essentially or materially) the same development as the originally approved development. For example, comparison could be made of the consequences, such as the environmental impacts, of carrying out the modified development compared to the originally approved development: see Moto Projects at [62] and Tipalea Watson Pty Ltd v Ku-ring-gai Council ( 2003) 129 LGERA 351; [2003] NSWLEC 253 at [17]. [29] But if that way is selected, then the material and essential features or elements are to be identified from the originally approved and modified developments, not from the circumstances in which the original development consent was granted. [33] … As the Council submitted, the Commissioner undertook the comparative exercise required by identifying and comparing the material and essential elements, both quantitative and qualitative, of the modified development and the originally approved development. No misdirection is revealed in the comparative exercise undertaken by the Commissioner. Key Takeaways The “essential elements” are not identified from the circumstances of the grant of consent, but from an analysis of the originally approved and modified developments. While Bignold J identified in Moto Projects that the comparative exercise requires a comparison of the proposed modified development and the originally approved development “in their proper contexts (including the circumstances in which the development consent was granted)”, this did not substitute a different (judicial) test for the test imposed by the statutory provision and the circumstances of the grant of the consent are not relevant. The Court is not bound by earlier precedents to consider the circumstances of the grant of the consent. Identifying the “essential” or “material” elements of the development could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry. There are other ways to undertake the comparative exercise required. 193 Liverpool Road Pty Ltd ACN 163231810 v Inner West Council [2022] NSWLEC 1197 Facts The original development consent was granted in 2017 for mixed use development comprising comprising one retail shop, one residential apartment and thirty-eight units of boarding house accommodation in a part three-storey, part eight-storey development. The modification sought approval for: Removal of the smaller north facing communal room on level 3 and replacement with an additional boarding room increasing the total number of boarding rooms from 44 to 45; Moving the boarding house laundry from level 3 to the ground floor bike storage area; Replacing deleted bike spaces with wall mounted bicycle racks on balconies of some rooms; Removal of the privacy screens from the northern façade; Increase to the size of room 1.03 by enclosing part of the courtyard; an Extension of the main common room on level 3 over the space that contained the communal laundry. Council argued that the consent authority could not be satisfied that the approved modification would be substantially the same development as the development for which consent was originally granted. The Applicant submitted that “whilst the test in s 4.55 does not permit comparison between what it proposed and the consent as modified, it is noteworthy that following the first modification application, which increased the number of boarding rooms and deleted the one residential apartment, Council did not raise any concerns as to whether the development was substantially the same as that originally approved”. The Applicant submitted that the Commissioner’s decision related to the first modification of the consent and that the second, third and fourth modifications were subsequently approved by the Respondent Council, each time forming the positive view that the development was substantially the same as the development for which consent was originally granted. Commissioner Espinosa held that the development as modified was not substantially the same as the development originally approved and refused the application. Findings and conclusion: Proposed Modification not substantially the same [40] I reach the conclusion that the Proposed Modification is not substantially the same as the development for which consent was originally granted. I have undertaken a comparative task which involved an appreciation, qualitative, as well as quantitative, of the developments being compared, including the circumstances in which the 2017 development consent was granted. Communal living spaces quantitatively and qualitatively not the same [42] Focusing on the communal living spaces, the Applicant refers to the current size and amenity of the north facing common room however the test, acknowledged by both parties, is a comparison between the 2017 Consent and the Proposed Modification. [43] I am unable to be satisfied that they are substantially the same both in a quantitative sense, where the 2017 Consent has 2 separate communal living spaces as opposed to the Proposed Modification which proposes a single, albeit larger and reconfigured, communal living space. From a qualitative comparison, I conclude that the evidence supports a finding that the Site will lose a north facing communal living space and although there may be some other amenity improvements or benefit, it is a simple proposition that the Proposed Modification would no longer offer or provide the same north facing solar access and amenity in a communal living space as per the 2017 Consent. [44] Whether or not the north facing common room with solar access is a material and essential feature of the 2017 consent may not be ultimately determinative of the “substantially the same test”. [46] We may not know categorically whether the communal living space(s) was an essential or critical feature for Moore J in the 2017 Consent however, the Court does know that a ‘do not refuse’ provision of the SEPP ARH, namely cl 29 relating to the provision of a communal living space with solar access in a boarding house, was complied with and as such I conclude that the north facing common room, proposed to be deleted and replaced with a boarding room, is a material element of the 2017 Consent. Moving residential (common laundry) down into commercial space [47] I now move on to consider whether the introduction to the ground floor of a residential component of the boarding house, namely the communal laundry, modifies the 2017 Consent to the extent that it renders the development no longer substantially the same. Put another way, is the lack of residential component on the ground floor (the communal laundry of a boarding house) a material and essential feature of the 2017 Consent and does this modification render the development not substantially the same? My answer is that the proposed relocation of the laundry onto the ground floor results in the development not being substantially the same as the 2017 Consent. [48] The use of land is a relevant consideration in the comparison exercise and the introduction of a residential use (the laundry) is a new introduction of use to the currently exclusive commercial ground floor. [50] I do not agree with the Applicant, that the inclusion of the laundry is a minor extension of existing residential bin store. Like the bike parking, bin storage is a common residential and commercial use whereas a common laundry is for the exclusive use of boarding house residents and is a clear introduction of a residential use to the ground floor area. I conclude that from both a quantitative and qualitative basis the proposed change is not substantially the same as the 2017 Consent. Court not bound by previous approvals of Council [52] It is clear that I am not bound by the previous opinions formed by the Respondent or Commissioner O’Neill in relation to previous modifications. To rely on these previous opinions would not be a proper exercise of forming my own opinion in accordance with the provisions of s 4.55(2)(a) of the EPA Act. As stated in Westlime, the formation of the requisite mental state by the consent authority will involve questions of fact and degree which will reasonably admit of different conclusions. Key Takeaways The comparative exercise involves a comparison of the modified development as proposed against the development in the original consent not later modifications. The use of land is a relevant consideration in the comparison exercise. The Court is not bound by previous opinion formed by Council or by a previous Commissioner in relation to earlier modifications. Hunter Development Brokerage Pty Limited trading as HDB Town Planning and Design v Singleton Council [2022] NSWLEC 64 Facts The original consent was granted in 1994. A modification application was lodged with Council in November 2020 to modify the consent to permit biomass to be utilised as a fuel source in an existing electrical generating power plant. The Applicant lodged an appeal against deemed refusal of the modification application. The primary modification proposed was the introduction of biomass as a supplementary source of fuel for the operation of the power plant. Other modifications that were proposed arose from the proposal to introduce the additional fuel source or to facilitate the use of the additional fuel source. Council contended that the proposed development was not substantially the same. Duggan J dismissed the appeal and refused the Modification Application. Reasons Substantially the same development [79] … The legislative power to modify is subject to the specific gateways expressed for each of the relevant powers of amendment provided for in s 4.56 and through which those who seek to invoke the power must first proceed: Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300 at [54]. In this case, that gateway is that the development must remain substantially the same once amended as that which was originally approved. [80] The relevant test is that set by the statutory language: Arrage at [18]. Judicial interpretations of the statutory language of “substantially the same” have approved of the formula adopted in Vacik at 4 of “essentially or materially or having the same essence”: see North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 and 481-482. [81] As was also usefully observed by Stein J in Vacik at 6, which observations I adopt as apt for the circumstances of this case: In approaching the s 102 exercise one should not fall into the trap of saying that the development was for a certain use – extractive industry – and, as amended, it will be for precisely the same use and accordingly is substantially the same development. What is important is that a development, particularly extractive industry, must be assumed to include the way in which the development is to be carried out. Otherwise, there may be little purpose in s 102. [88] Upon a consideration of the EIS and the other documentary material expressly incorporated into the 1994 DC, contrary to what was contended by the Applicant, the 1994 DC did not have a single purpose that was material or essential, being the generation of power, but rather two co-dependent interrelated purposes: being the disposal of coal tailings; and the consequential generation of electricity from the process of the disposal of the coal tailings. [89] This duality of purpose is illustrated in the express reference of the identification of the project and its objectives as is recited above at [31]. It may be that the development was ultimately characterised, for planning purposes, as a power plant, but the essence or material elements of the development for which the 1994 DC was granted was not solely (nor materially or essentially) for that purpose, it was for the treatment and reuse of a mine waste product and the sale of the by-product (electricity) of that treatment. [97] Having regard to the totality of the 1994 DC, for the reasons outlined above, the disposal of coal tailings was an essential component of the development the subject of the 1994 DC. The Applicant contends that it is impermissible to “focus” upon a single element of the development in determining whether it is substantially the same and that the totality of that approved must be compared to the totality of that modified. That is so, but this exercise cannot be undertaken in a numeric “tick a box” approach. The significance of a particular feature or set of features may alone or in combination be so significant that the alteration is such that an essential or material component of the development is so altered that it can no longer be said to be substantially the same development – this determination will be a matter of fact and degree depending upon the facts and circumstances in each particular case. Such an exercise is not focusing on a single element, rather it is identifying from the whole an element which alone has such importance it is capable of altering the development to such a degree that it falls outside the jurisdictional limit in s 4.56. [98] In this case, for the reasons I have found, the disposal of coal tailings was a fundamental element of the proposal, which if altered to a material degree would have the potential to alter an essential or material component of the development the subject of the 1994 DC. The replacement of the fuel source of coal tailings with biomass would be such a change. However, that is not what the Modification Application proposes in this case. The fundamental question here is whether the change proposed is so material that the modified development as proposed in the Modification Application is no longer substantially the same development. [99] The Applicant has taken great care to ensure that the Modification Application does not preclude the burning of coal tailings as fuel even though it acknowledges that at the present time it is not commercially viable for it to do so. So, it is true to say, as the Applicant does, that it is not seeking to replace coal tailing with biomass, but rather to provide for an additional fuel source, namely biomass. The power station will remain functionally capable of burning coal tailings. But is that enough to maintain the Modification Application as substantially the same as the 1994 DC? The answer must be no. [100] The 1994 DC had as an essential requirement the burning of coal tailings. The Modification Application leaves open to the operator an absolute discretion – as provided for in the proposed condition 16 – as to whether to burn biomass or coal tailings as fuel. As a consequence, the relationship between the coal mines and the disposal of coal tailings which was a fundamental aspect of the 1994 DC may be abandoned at the decision of the operator. The inherent discretion renders the continued capacity to burn coal tailings as fuel as an illusory maintenance of the essence of the 1994 DC. There being no longer an obligation to carry out the development to achieve the purpose for which it was developed there is no continual manifestation of the essence of the development. Accordingly, notwithstanding the retention of the physical capacity to burn coal tailings as fuel, the Modification Application in the form proposed alters the development in such a fundamental manner that it loses the essential and material relationship to the disposal of coal tailings and the associated mine operations that it cannot be characterised as being substantially the same development as the 1994 DC. Key Takeaways One must not fall into the trap of saying that the development was for a certain use and, as amended it will be for precisely the same use and is therefore substantially the same. A development must be assumed to include the way in which the development is to be carried out. One must consider all of the purposes for which consent was granted. The significance of a particular feature or set of features may alone or in combination be so significant that the alteration is such that an essential or material component of the development is so altered that it can no longer be said to be substantially the same development – this determination will be a matter of fact and degree depending upon the facts and circumstances in each particular case. Such an exercise is not focusing on a single element, rather it is identifying from the whole an element which alone has such importance it is capable of altering the development to such a degree that it falls outside the jurisdictional limit in the legislation. The significance of a particular feature of the development may be so significant that the alteration is such that an essential or material component of the development is so altered that it cannot be said to be the same development. Conclusion The comparative exercise required to enliven the power to modify a development consent must involve both quantitative and qualitative matters and consider all of the essential and material features of the development as originally approved. Often the answer to whether the two developments are substantially the same will involve matters of fact and degree on which reasonable minds may differ. This is a complex area of planning law and if you are proposing a modification application or encountering these issues, you should obtain competent planning and legal advice.

This article explores the role of public participation in NSW planning and the appropriate weight that ought to be given to community submissions in the evaluation of the merits of a development proposal.

Only when all of these criteria are met can a development application be said to have been made. This specificity is important because new environmental planning instruments ( EPIs ) often contain a savings provision which excludes DAs “made” but not “determined” at the time of introduction of the new EPI. This article reviews recent cases dealing with the question of when a DA is “made”. Commitment Pty Ltd v Georges River Council (No 2) [2022] NSWLEC 94 ( Commitment ) In this case the applicability of the Hurstville Local Environmental Plan 2021 ( HLEP 2012 ) or the Georges River Local Environmental Plan 2021 ( GRLEP 2021 ) depended on when the development application was made. Clause 1.8A of GRLEP 2021 provides that the GRLEP 2021 does not apply to a development application “made, but not yet determined”, on or before the commencement date of the GRLEP 2021. The question in Commitment was whether the Applicant’s development application was “made” on or before the GRLEP 2021 commenced. Held Pain J determined at [59] that an Applicant submits a development application via the NSW planning portal, lodges it when the fee is paid and notified as required by cl 50(8) and “makes” the DA when there has been substantial compliance with the regulations. Facts On 30 September 2021, the development application ( DA ) was submitted to the NSW planning portal. On 8 October 2021, two things happened: the development application fee was paid and the GRLEP 2021 was published on the NSW legislation website, repealing and replacing the HLEP 2012. Section 24 of the Interpretation Act 1987 (NSW) provides that “If an Act or statutory rule provides that it shall commence, or be deemed to have commenced, on a particular day, it shall commence, or be deemed to have commenced, at the beginning of that day.” Both parties agreed that the GRLEP 2021 came into force very early on 8 October 2021. Clause 1.8A of GRLEP 2021 contains the relevant savings provision: 1.8A Savings provisions relating to development applications If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced. [our emphasis] When the DA was submitted to the NSW planning portal (30 September 2021) the Environmental Planning and Assessment Regulation 2000 ( EPA Regulation 2000 ) applied. Clause 50 of the EPA Regulation 2000 set out the requirements for a development application to be “made”: 50 How must a development application be made? (1) A development application must – (a) be in the form that is approved by the planning secretary and made available on the NSW planning portal, (b) contain all of the information that is specified in the approved form or required by the Act and this Regulation, and (c) be accompanied by the information and documents that are specified in Part 1 of Schedule 1 or required by the Act and this Regulation,  (d) be lodged on the NSW planning portal. (8) The applicant must be notified, by means of the NSW planning portal, that the development application has been lodged. … (9) A development application is taken not to have been lodged until the fees notified to the applicant by means of the NSW planning portal have been paid. Note: The Environmental Planning and Assessment Regulation 202 1 ( EPA Regulation 2021 ) repealed and replaced the EPA Regulation 2000. Clause 50 of the EPA Regulation 2000 became clause 24 in the EPA Regulation 2021 and contains similar language and similar provisions. The Applicant argued that a development application is “made” when it is uploaded to the NSW planning portal and contains the documents and information required by the EPA Regulation 2000. Moreover, under s 4.12(1) and (2) of the EPA Act an application may be made by ‘a person’, not a consent authority. Accordingly, persons other than an Applicant cannot determine if an application is “made” given the entitlement of a person to apply granted by s 4.12 of the EPA Act. An Applicant’s entitlement to make a development application under s 4.12 of the EPA Act is frustrated by a construction whereby ‘lodgement’ must be satisfied in order for an application to be made when that is clearly a separate process and outside the control of the Applicant. The Council argued that the lodgement of a DA on the NSW planning portal is one aspect of the making of a DA such that a DA could not be made simply when “put” onto the NSW planning portal by the applicant. To accept this construction gives the EPA Act and EPA Regulation 2000 no work to do. Lodgement on the planning portal is a necessary pre-requisite to a DA being “made” and lodgement is expressly contingent on payment of the relevant fee. Decision The Court held (at [47]) that a DA is made for the purposes of the savings provision in cl 1.8A of the GRLEP 2021 when there is substantial compliance with each of the requirements of the EPA Act and EPA Regulation 2000 applicable to the making of development applications. This includes all of the requirements of cl 50 (above) and payment of the fee. Pain J found at [50] that, “Arguably only once substantial compliance with cl 50(1) is achieved has a DA been made sufficient to enable its determination. One requirement is that “lodgement” of a DA is required by cl 50(1)(d) and must be read with subcl (9) (the requirement to pay a fee).” Pain J held (at [56]), that whether a matter is within a person’s control, or not, is not relevant to statutory construction. In this case, it was irrelevant whether the Applicant was in control of when the DA was made for the purposes of construing the legislation. The Court agreed with the Council’s argument that an applicant submits the DA via the NSW planning portal and obtains a unique PAN number, lodges it when the fee is paid and notified and “makes” the DA when there is substantial compliance with all of the requirements of cl 50 of the EPA Regulation 2000. Key Takeaways An Applicant submits a DA via the NSW planning portal and obtains a unique PAN number, lodges it when the fee is paid and “makes” the DA when there is substantial compliance with cl 50 of the EPA Regulation 2000. Whether matters outside the control of the Applicant delay or impact the date a DA is “made” is not relevant to the exercise of statutory construction required to determine when a DA has been made. Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2022] NSWLEC 150 Similar to Commitment , at the core of this case was a dispute about when a development application was made. The applicability of the State Environmental Planning Policy (Housing) 2021 ( 2021 SEPP ), depended on when the development application was made. On 26 November 2021, the 2021 SEPP repealed and replaced the State Environmental Planning Policy (Affordable Rental Housing) 2009 ( 2009 SEPP ). The 2021 SEPP has different standards and requirements to those of the 2009 SEPP, which restricted the Applicant’s proposed development. The 2021 SEPP contained a savings provision which, if satisfied for the Applicant’s development application, would mandate that the application was determined pursuant to the old 2009 SEPP, not the new 2021 SEPP. The question in this case was whether the Applicant’s development application was “made” on or before the 2021 SEPP commenced. Held Moore J determined that the Applicant’s development application was not made on or before the 2021 SEPP commenced. Moore J found that, as at 26 November 2021, the development application was not accompanied by either the A4 plan of the building required by cl 50(1)(c) and cl 2(1)(d) of Sch 1 of the EPA Regulation 2000 (at [59], [60], [67], [68], [71]) or payment of a fee duly determined and notified to the Applicant (at [61]-[64], [73]). Facts The Applicant submitted a development application through the NSW planning portal on 22 October 2021. Exchanges between the Applicant and the Council seeking further information about the development application took place after 22 October 2021. The EPA Regulation 2000 requires a number of documents, plans and information to be uploaded to the NSW planning portal to form a complete application. Schedule 1, 2(d) of the EPA Regulation 2000 requires: (d) in the case of development that involves the erection of a building, an A4 plan of the building that indicates its height and external configuration, as erected, in relation to its site (as referred to in clause 56 of this Regulation), The development application was not accompanied by “an A4 plan of the building that indicates its height and external configurations, as erected, in relation to its site”. Other plans of the buildings to be erected on the site (the proposed development comprised four buildings), from which the heights and external configurations of the buildings could be derived, did accompany the development application. But there was no single A4 plan of the buildings that indicated their heights and external configurations. The consent authority, Sutherland Shire Council ( Council ), issued requests for additional information, first on 23 November 2021 and again on 29 November 2021. The Applicant issued a response to those requests on the NSW planning portal on 26 November 2021 and 1 December 2021 respectively. Although the Applicant did supply further plans, it never supplied a single A4 plan of the buildings that indicated their heights and external configurations. On 2 December 2021 the Council issued an invoice for the development application fee through the NSW planning portal. The Applicant paid the invoice on 9 December 2021. The parties sought determination of a legal question: for the purpose of the savings provision in the 2021 SEPP, was the development application to be regarded as having been made on or before 26 November 2021 when the new 2021 SEPP commenced? The EPA Regulation 2000 applied at the time. Clause 256(1) of the EPA Regulation 2000 required that the Council raise an invoice within 14 days of receiving an application. Note: Following the introduction of the new EPA Regulation 2021 this requirement remains and is found in cl 256 of the EPA Regulation 2021. The Applicant argued that the failure of the Council to discharge its mandatory obligation under cl 256(1) of the EPA Regulation 2000 should not be permitted to stand in the way of the conclusion that the Applicant’s development application had been made, but not determined, on or before 26 November 2021. Further, the Applicant had substantially and sufficiently complied with the requirements of the EPA Regulation 2000 by 26 November 2021 so that the Applicant’s development application should be held to have been made by that date. The Council argued that the plans which satisfied the EPA Regulation 2000 were not uploaded by the Applicant until 1 December 2021. This meant that the obligation to determine and notify the development application fee as required by cl 256(1) of the EPA Regulation 2000 was not triggered until those plans, which were compliant with Sch 1, cl 2(d) of the EPA Regulation 2000, were uploaded to the NSW planning portal on 1 December 2021. Decision Moore J applied the analysis of Pain J in Commitment (above) concerning the relevant steps in the process necessary to regard a development application as being “made”. For the reasons explained in Commitment a development application can only be regarded as having been made after the fee payable for such a development application has been paid. In this instance, the Applicant had not uploaded the A4 plan required until 1 December 2021, nor paid the applicable fee until 9 December 2021, both of which were required prior to a development application being “made”. Moore J found that there was no evidence the Applicant had rejected the validity of the Council’s requests for further information between 22 October 2021 (DA submitted) and 2 December 2021 (invoice raised) and the Applicant’s planner should have done so if it felt the Council had no justification to raise the questions it did. Further, Moore J held that in circumstances in which the Applicant asserts that the Council breached its obligations in the EPA Regulation 2000 it was open to the Applicant during this time to bring urgent proceedings in of the Land and Environment Court to remedy the alleged breach by the Council. The breach could have been remedied by the Applicant exercising its right pursuant to s 9.45 of the EPA Act and approach the Court to seek an order to require the Council to determine and advise the Applicant of the development application fee payable. Key Takeaways A DA is “made” for the purposes of savings provisions when it is submitted to the NSW planning portal and the fee is paid. ·Following submission of the DA into the NSW planning portal, a consent authority has 14 days to raise an invoice for payment of the applicable development application fee. ·If a Council refuses to raise the invoice for payment and requests additional information to accompany the application in accordance with the requirements of the regulations, Applicants should consider carefully whether their application is compliant and, if it is, state that fact very clearly in written communication to the Council. Where a Council breaches its obligation to raise the invoice for payment in time, it is open to Applicants to bring urgent proceedings in Class 4 of the Land and Environment Court to remedy the breach. Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264 The Applicant appealed the decision of Moore J (at first instance) to the NSW Court of Appeal. Held Basten AJA (with whom Gleeson JA agreed) and Preston CJ of the Land and Environment Court (dismissing the appeal) held that on a proper construction of the statutory provisions governing the making of a development application, the Applicant’s development application was not “made” on or before the commencement date of the 2021 SEPP. Accordingly, Moore J was correct in finding that the 2021 SEPP and not the 2009 SEPP applied to the Applicant’s development application. Preston CJ set out the statutory scheme for making development applications to resolve the competing interpretations advanced by the parties. The analysis provided by Preston CJ is especially helpful for town planners in understanding the requirements of making development applications. Statutory scheme for making development applications Section 4.12(1) of the EPA Act states simply that a “person may, subject to the regulations, apply to a consent authority for consent to carry out development”. The relevant regulation in force at the time the Applicant made the development application was the EPA Regulation 2000. Clause 50 of the EPA Regulation 2000 prescribed how a development application must be made and clause 50(1) prescribed the form and manner of making a development application for consent to carry out development (other than state significant development). Clause 50 provided: (1) A development application, other than an application for State significant development, must— (a) be in the form that is approved by the Planning Secretary and made available on the NSW planning portal, and (b) contain all of the information that is specified in the approved form or required by the Act and this Regulation, and (c) be accompanied by the information and documents that are specified in Part 1 of Schedule 1 or required by the Act and this Regulation, and (d) be lodged on the NSW planning portal. Paragraphs (a) to (c) prescribe the form the development application must take, paragraph (d) prescribes the manner in which the application must be lodged, via the NSW planning portal. His Honour Preston CJ held that the first type of information that was required in this case to be provided included an A4 plan to accompany the development application. Although the Applicant’s development application included a series of plans of the buildings, the development application was not accompanied by an “A4 plan” of the buildings that indicated their heights and external configurations, as erected in relation to the site. The Applicant provided an A3 site plan and five A3 sheets of elevations, which were extracts from the full set of plans. Accordingly, Preston CJ found at [94] that “the requirement that such an A4 plan accompany the development application remained unmet as at the commencement date of the 2021 SEPP of 26 November 2021.” His Honour held that the second type of information (or document) that was required to accompany the development application was the payment (or record of payment) of the fee to accompany the development application. This is because clause 256 of the EPA Regulation 2000 requires that the consent authority make a determination of the fee to “accompany a development application” and to notify the Applicant of the determination. Preston CJ held at [98] that clause 256 of the EPA Regulation 2000 imposes a requirement on the Applicant that payment of a fee, which has been determined by the Council and notified to the Applicant, “accompany a development application”. Accordingly, this Honour held: “The payment of a duly determined and notified fee thus falls within the category of “information and documents that are specified in Part 1 of Schedule 1 or required by the Act and this Regulation”, which cl 50(1)(c) of the EPA Regulation 2000 requires a development application to be accompanied by.” His Honour held at [99] that the consequence of the Applicant’s development application not “meeting these two form requirements that the development application be accompanied by the A4 plan of the building and the payment of the fee was that the development application was incomplete as at 26 November 2021.” Incomplete and ineffective application His Honour went on to discuss the nature of an incomplete application being ineffective, that is, not being capable of engaging the power of the consent authority to grant consent to the application. The wording of the savings provision in the 2021 SEPP (a development application “made” but not yet “determined”) presupposes that there is a complete and effective development application that can be “determined” by the grant of consent. His Honour held at [118]: “The consent authority would have no power to determine by the grant of consent a development application that is incomplete and ineffective. Thus, both the word “made” and the word “determined” demand that the development application be complete and effective in order to be an application in terms of the EPA Act.” What about the deeming provision in cl 50(9) of the EPA Regulation 2000? Recall that cl 50(9) of the EPA Regulation 2000 provides: (9) A development application is taken not to have been lodged until the fees notified to the applicant by means of the NSW planning portal have been paid. His Honour found at [125] that “The deeming provision in cl 50(9) operates to deem a development application, although in fact lodged on the NSW planning portal under cl 50(1)(d), not to have been lodged until the fees notified to the applicant by means of the NSW planning portal have been paid.” The lodging of the development application on the planning portal is the way in which the application must be made. Cl 50(9) has 2 effects: it deems a development application that has been lodged on the portal not to have been lodged; and it also causes a development application not to have been “made” until the fee notified to the Applicant has been paid. Accordingly, his Honour stated at [129]: “A development application that is not lodged is not made. Thus, cl 50(9) operates not only to deem a development application not to have been “lodged” until the fee notified to the applicant has been paid, but also to cause the development application not to be “made” as the manner requirement for making a development application would not be satisfied.” In summary, Preston CJ found that the Applicant’s development application was incomplete and ineffective because it was not accompanied by the A4 plans and payment of the fee. Neither occurred before the commencement of the 2021 SEPP on 26 November 2021. As a consequence, the development application was not “made” for the purpose of the savings provision and the 2021 SEPP applied, not the former 2009 SEPP. DA not made until Applicant notified of payment Basten AJA (with whom Gleeson JA agreed) held at [28] that the development application is “made” when the consent authority provides a notification that the application is lodged after the fee has been paid. It is the date of notification of payment of the fee, not the date of payment of the fee itself which is the relevant date. Basten AJA found that cl 50 of the EPA Regulation 2000 sets out a number of steps that must occur in the making of a development application, namely, the lodging on the NSW planning portal, the notification to the Applicant of the fee payable, payment of the fee and, finally, notification through the NSW planning portal that the development application has been lodged (cl 50(8)). Recall that cl 50(8) of the EPA Regulation 2000 provides: 50 How must a development application be made? … (8) The applicant must be notified, by means of the NSW planning portal, that the development application has been lodged. (9) A development application is taken not to have been lodged until the fees notified to the applicant by means of the NSW planning portal have been paid. His Honour held at [27] – [28]: “[27] … On one view, that [the finding of a precise date the development application is made] is the purpose and effect of cl 50(8), which requires that the applicant be notified that the development application has been lodged. [28] Mechanically, the notice is generated by the NSW planning portal itself. However, that must be a result of steps taken by a party to the process. It is clearly not the applicant that directly causes the notice to be given, because it is the recipient of the notice. The purpose of the notice is to let the applicant know that lodgement is complete. The only other party which can cause the giving of the notice is the consent authority. On that view, the application is lodged when the consent authority provides a notification to that effect on the NSW planning portal….” Key Takeaways The Court of Appeal upheld Moore J’s findings in the first instance. A development application is incomplete if it is not accompanied by payment of the relevant fee. A development application is taken to have been made not when the application fee is paid, but when both the Council and the Applicant are notified through the NSW planning portal that the application is lodged (pursuant to cl 50(8) of the EPA Regulation 2000). Summary In NSW a development application is “made” for the purposes of most savings provisions, when the application fee is paid, compliance with the requirements of the regulation is achieved and when notification of lodgement via the NSW planning portal is received. Where an applicant considers requests for additional information are unwarranted or have been satisfied it should state this early in writing and provide reasons. Non-compliance with requirements for development applications in the regulations will result in an ineffective development application that does not engage the power of the consent authority to grant consent to the application. In circumstances where the Council delays or refuses to raise an invoice for payment of the application fee an Applicant may bring proceedings in Class 4 of the Land and Environment Court to remedy the breach. Require further assistance? We have assisted many applicants and town planners negotiating issues with acceptance of development applications into the NSW planning portal by Council and the raising of invoices for payment. As demonstrated by the cases above, the date a development application is made can have serious implications. If you require advice regarding when your development application may have been “made” or are considering approaching the Land and Environment Court for relief against a failure to raise an invoice or accept a development application, we can assist you in this process.