Australia: Exhibition periods for development applications: When can a submission be made and can the submission period be extended?

In the recent case of Woolcott Group Pty Ltd v Rostry Pty Ltd [2015] NSWLEC 46, the Land and Environment Court (Court) was asked to consider the requirements for making a submission regarding a development application for designated development.

The Court undertook a detailed examination of the statutory requirements for making a valid submission, including precisely when a submission will be deemed to be "made".

The Court also determined that an assurance from a consent authority that a submission period would be extended for one person is not enforceable, unless the public exhibition and written submission periods are equally and universally extended for all persons.

BACKGROUND

Rostry Pty Ltd (Rostry) lodged five development applications (DA) for poultry farms (Proposed Development) with Tamworth Regional Council (Council) as the relevant consent authority.

The Proposed Development was declared designated development, as the poultry farms were to be used for commercial production and accommodated more than 250,000 birds.1

Notice of each of the DAs was published in one local newspaper on 18 January and 1 February 2014, and another local newspaper on 21 January and 4 February 2014. That notice specified that the documents forming the DAs would be placed on public exhibition and available for inspection on weekdays at three specified locations, and on Council's website, for a period commencing on 20 January 2014.

The notice did not specify an end date for the exhibition period, but stated that any submission should be made prior to 5pm on 3 March 2014.

Additional notification was provided by Council to:

  1. adjoining landholders by letters dated 17 January 2014, with the exception of one adjoining landholder, Mr Fernance, who was notified by letter dated 31 January 2014; and
  2. persons who had registered an interest in receiving information about the Proposed Development, including the Woolcott Group Pty Ltd (Woolcott).

Acknowledging that Council had provided Mr Fernance with late notice, Council purported to extend his time for making a submission on the DAs until 14 March 2014.

By way of letter dated 27 February 2014, Woolcott wrote a submission regarding the Proposed Development, which was sent to Council by prepaid express post on 28 February 2014 (Woolcott Submission). While Australia Post records indicated that the Woolcott submission was delivered on 3 March 2014, it was date stamped '12 March 2014' by Council.

Following a meeting with persons who had made a submission regarding the Proposed Development, and consideration of those submissions, the Council granted consent to each of Rostry's five DAs on 8 July 2014 (Determination).

Woolcott appealed against the Determination to the Land and Environment Court (Court) under section 98(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), on the basis that it was an objector dissatisfied with the determination of a consent authority.

In response, Rostry filed notices of motion seeking summary dismissal of each of Woolcott's appeals, on the basis that Woolcott did not make a written submission to Council during the submission period and was not a person who could appeal under section 98(1) of the EPA Act.

It is these notices of motion which prompted the Court to consider the statutory requirements for making a submission regarding a development application under the EPA Act.

Statutory requirements for making a submission

The statutory requirements for the exhibition of a development application and the making of a submission were set out by the Court as follows:

  1. a consent authority must place the application and any accompanying information on public exhibition for a period of not less than 30 days (the submission period) commencing on the day after which notice of the application is first published as referred to in paragraph (d) (section 79(1)(a) of the EPA Act);
  2. paragraph (d) provides that the consent authority must cause notice of the application to be published in accordance with the regulations in a newspaper circulating in the locality (section 79(1)(d) of the EPA Act);
  3. During the submission period, any person may inspect the development application and any accompanying information and make extracts from or copies of them (section 79(4) of the EPA Act); and
  4. During the submission period, any person may make written submissions to the consent authority with respect to the development application. A submission by way of objection must set out the grounds of the objection (section 79(5) of the EPA Act).

Whether or not Woolcott made its submission to Council during the submission period (and, if so, was entitled to bring appeal proceedings) required the Court to determine the following:

  1. What was the submission period?
  2. What it means to "make written submissions to" the consent authority during the submission period?
  3. Whether, on the facts, Woolcott made such a submission.

WHAT WAS THE SUBMISSION PERIOD?

Notice of Rostry's development application was first published by the Council in the Northern Daily Leader newspaper on Saturday 18 January. The first week day after that was Monday 20 January. The Court therefore held that the submission period began on 20 January 2014.

Even though the end date of the submission period was not expressly stated by the Council in any of its notices, the Court held that it could be implied from the statement in each of its notices that each written submission, "must be made prior to 5:00pm on 3 March 2014", that the end date of the submission period was 3 March 2014.

In response, Woolcott submitted that the Council had extended the submission period in two ways:

  1. Council's purported extension of the submission period for Mr Fernance to 14 March 2014 constituted an extension for all persons until that date; and
  2. Council impliedly extended the end day of the submission period for Woolcott to 12 March 2014 by continually acknowledging receipt of the Woolcott Submission.

In response to (a), the Court held that there is a power for a consent authority to extend the submission period, but that it can only be exercised so as to extend the submission period universally for all persons and not differentially for one or some persons.

The Court stated that there is only one submission period, which serves two purposes. Firstly, to fix the period during which the development application and accompanying information must be placed on public exhibition and be available for inspection. Secondly, to fix the period during which the public may make written submissions to the consent authority with respect to the development application. There cannot be one submission period for public exhibition for a DA and a different submission period for making submissions; they are simultaneous.

Accordingly, the Council's letter to Mr Fernance did not extend the submission period because it did not extend the public exhibition of the DAs to 14 March, as the viewing materials were removed from Council premises on 3 March. Further, the Council did not have the power to extend the submission period just for Mr Fernance and no one else.

In response to (b), the Court held that the Council did not impliedly extend the submission period through conduct for the same reason. There can only be one submission period. Even if an extension was implied, the public exhibition was taken down on 3 March, thus ending the submission period.

What does it mean to "make written submissions to" a consent authority during the submission period?

Woolcott submitted that, because of the language used in the EPA Act, a submission need only be sent to, and not received by, a consent authority in order to be "made" for the purpose of the EPA Act. In response, Rostry submitted that a written submission cannot be considered to have been made to a consent authority until the particular mode by which the submission is made has been completed.

The Court agreed with Rostry's submission, noting that the concept of being "completed" will be (in most instances) when the submission is received by the consent authority.

This objective reference point was said to make compliance with other statutory time requirements in the EPA Act easier to follow and give effect to2, as well as clarify who falls under the definition of an "objector".

DID WOOLCOTT MAKE ITS SUBMISSION DURING THE SUBMISSION PERIOD?

The Court found that Woolcott made a submission to Council during the submission period for two reasons.

Firstly, the evidence of Australia Post was that the Woolcott Submission was delivered to Council's post office box on 3 March 2014 (such delivery to the post office constituting a delivery to the Council) and Rostry did not call evidence from any person to contradict this. Accordingly, it failed to discharge its evidentiary onus and the Court drew the inference that the evidence from any relevant witnesses would not have assisted Rostry.

Secondly, even if the post did not arrive at Council's nominated address on 3 March 2014, the EPA Act included special provisions for the giving or serving of notices or documents by express post:

  1. section 153(1)(b)(ii) permits pre-paid post as a mode of giving or serving a document; and
  2. section 153(2) states that a document sent by prepaid post is given or served at the time at which the document would be delivered in the ordinary course of post.

The ordinary course of express post is the next business day.

Accordingly, by using express post on Friday, 28 February, the Woolcott Submission was deemed to be given or served (i.e. "received") on Monday, 3 March, being the next business day and the Woolcott Submission was made during the submission period.

On this basis, Woolcott was an objector for the purpose of section 98(1) of the EPA Act and each of Rostry's notices of motion were dismissed.

IMPLICATIONS

The Court's considered judgment provides important clarification regarding the interpretation of the provisions of the EPA Act regulating the development assessment exhibition process and the corresponding timeframes and processes for making submissions.

The key point for consideration is that, where a submission is proposed to be made outside of the submission period, reliance should not be placed on an individual assurance from a consent authority that a submission will be accepted out of time, or that the submission period has been extended for the making of a particular submission.

Even if the submission is considered by the consent authority, which it is under no legal obligation to do, the making of a late submission will afford no rights under section 98 of the EPA Act to commence an objector appeal.

Instead, where an extension of time for the making of a submission is sought, it is essential that the exhibition period is extended universally and not merely purported to be extended in relation to the making of one particular submission.

Footnotes

1 (Item 21, livestock intensive industries, in Pt 1 of Sch 3 of the Environmental Planning and Assessment Regulation 2000) and sections 4(1) and 77A of the Environmental Planning and Assessment Act 1979.

2 Such as that under section 80(9) of the EPA Act, which restricts a consent authority from determining a development application for designated development until certain time periods have expired.

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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