Australia: NSW Land and Environment Court has power to permit the "regranting" of development consents which have been declared invalid

In brief - Court can permit readvertising and regranting of a consent

In limited circumstances, the Land and Environment Court will exercise its power under the Land and Environment Court Act 1979 to permit the original consent authority - typically the local council - to readvertise and "regrant" a development consent that has been found to be invalid.

Csillag v Woollahra Council [2011] NSWLEC 17

The case of Csillag v Woollahra Council [2011] NSWLEC 17 involved a challenge to a decision made by Woollahra Municipal Council to grant a development consent to carry out alterations and additions to a penthouse apartment known as 15/335 New South Head Road, Double Bay.

The building in which the penthouse apartment was located, however, also had an address known as 353 Edgecliff Road, Double Bay. Council proceeded to notify the development publicly with reference to its New South Head Road address, without reference to its Edgecliff Road address.

Failure by Council to identify the property properly

The Court held that, though the error was technical in nature, the failure to identify the property properly by its alternative address constituted a failure by the Council to notify the development application in accordance with the Woollahra Development Control Plan for Advertising and Notification of Development Applications. As a consequence, it followed, the Court found that the development consent was invalid.

Before making any final determination in relation to the development consent, the Court referred to the provisions set out in Division 3 of Part 3 of the Land and Environment Court Act 1979.

Invalid consents remitted back to consent authority for reassessment

Essentially, the provisions set out in Division 3 of Part 3 provide a statutory mechanism which enables the Court to suspend the operation of the defective consent and have the consent remitted back to the original consent authority for reassessment and redetermination, or what the Court Act refers to as "regranting" (provided, of course, the original consent authority is satisfied with the merits of the application).

As the Court observed, these provisions must be considered in all cases where the determination of invalidity of a development consent would otherwise be made.

As discussed in the Court of Appeal decision of Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38, the legislative intent behind the operation of the regranting provisions "emphasises the legislative concern that development consents not be frustrated by potential invalidities in respect of which the court may, as a matter of discretion, consider making a s.25B order."

Court suspends the development consent

Without embarking on a detailed assessment of the merits of the current application, his Honour held that it was appropriate in the circumstances to exercise the Court's discretion under Division 3 of Part 3 of the Court Act:

[59] Without suggesting that alterations and additions proposed for apartment 15 can have no external impact, given the existence and location of the tower building it would appear that impacts, if any, would be limited to relatively few people. Moreover, the development is, by any objective standard, relatively small in its scope of work and cost. In these circumstances, I consider it appropriate to suspend the operation of the consent granted on 6 July 2009 in accordance with s 25B(1) of the Court Act. Otherwise, the processes provided for in Div 3 of Pt 3 of the Court Act should take their course.

In the current case the Court:

  • suspended the development consent pending further order of the Court
  • remitted the development consent (now effectively treated as a development application) back to the Council for re-notification and advertising in accordance with Council's development control plan for advertising and notification
  • directed the Council to give further consideration to the development application in accordance with section 103 of the Environmental Planning and Assessment Act following receipt of any submissions or objections received in consequence of notification and advertisement
  • directed the Council to re-determine the application, having regard to the merits of the development
  • relisted the matter for further hearing

Court finds that its earlier orders have been complied with

The matter came back before the Land & Environment Court for consequential orders in June 2012, Csillag v Woollahra Council (No 2) [2012] NSWLEC 135. The Court was satisfied that its earlier orders had generally been complied with and that, on this occasion, the regranting of the consent had been validly made.

As the Court noted, it was not the role of the Court to consider the merits of the application, but merely to consider whether its orders had been complied with and that due process had been followed.

[14] In exercising the function of the Court under Div 3 of Pt 3 of the Court Act, I am not called upon to determine, as a matter of merit, whether the amended development application should be the subject of the Council's approval. Rather, the function that I am performing is to determine whether the orders that I made on 25 February 2011 for advertising, notification and reconsideration have been observed.

Regranting of development consent took more than 18 months

Despite the beneficial nature of the relief granted, the process of regranting can be far from satisfactory for affected property owners. In the present case, for a multiplicity of reasons, the regranting process took in excess of 18 months to complete (from the date on which the consent was suspended by the Court to the date on which the regranted consent was declared valid) and involved three rounds of significant amendments to the original approval. Overall, the exercise was a frustrating and costly one for the affected land owners.

Local councils and their officers and staff exempted from liability

Added to the burden of a land owner faced with a defective consent – requiring the land owner to pursue the regranting process or lodge a new development application – is the realisation that there is only very limited recourse against the consent authority for financial losses incurred as a result of the defective consent.

Tucked away in the back of the Local Government Act 1993 is section 731, which effectively exempts local councils from any liability arising from the consequences of their actions, provided those actions were in the furtherance of their obligations and were made in good faith. That exemption extends to officers and staff working for a local council.

Anthony Perkins
Planning and environment
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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