Australia: What happens if consent for development is granted where it is not required?

Last Updated: 19 May 2017
Article by Rebecca Hiscock
Most Read Contributor in Australia, September 2017

In the recent decision in Butler Street Community Network Incorporated v Northern Region Joint Regional Planning Panel [2017] NSWLEC 51, the Land and Environment Court (Court) had to determine whether consent granted for development not requiring consent was invalid. The Court also had to consider whether it has jurisdiction, where the majority of the development is permissible without consent. This case note confirms how the established hierarchy of environmental planning instruments (EPIs) interplay when multiple EPIs apply to land, and looks at the Court's jurisdiction to determine applications.

Background

The Northern Region Joint Regional Planning Panel (Panel) granted consent to a development application by GHD Pty Ltd, lodged on behalf of Byron Bay Shire Council (Council), for the upgrade of the Byron Bay Bypass within the Byron Bay township (DA). A portion of the bypass will pass through wetlands to which the State Environmental Planning Policy No 14 - Coastal Wetlands (SEPP 14) applies.

Butler Street Community Network (Objector) commenced proceedings to challenge the Panel's consent.

The hierarchy of EPIs

The zoning of the land the subject of the DA under the Byron Bay Local Environmental Plan 2014 (LEP) allows the construction of roads with consent. However, clause 94 of the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) also applies to the land, and permits development for the purposes of a road without consent by a public authority.

It was common ground in the proceedings that to the extent of the inconsistency between the LEP and the Infrastructure SEPP, clause 8(1) of the Infrastructure SEPP operates to allow the Infrastructure SEPP to prevail. As a result, the majority of the bypass could be developed without consent.

It was also common ground that consent was required for the part of the bypass which would pass through the wetlands, because clause 8(2) of the Infrastructure SEPP provides that SEPP 14 prevails to the extent of any inconsistency with it.

The Objector's argument

The Objector argued that:

  • the majority of the bypass did not require consent, and consent cannot be granted for development which does not require consent. Therefore, the Panel did not have the power to grant the DA except in relation to the part of the bypass located within the wetlands.
  • as a result, the DA was invalid. Without a valid DA before it, the Court did not have jurisdiction to grant or uphold consent under section 80 of the Environmental Planning and Assessment Act 1979 (EP&A Act); and
  • to determine only the part of the DA affecting the wetlands would require the DA to be amended in such a significant way that it would constitute a fresh application under clause 55 of the Environmental Planning and Assessment Regulation 2000, which the Court did not have the power to entertain.

Was the DA invalid?

On the question of whether the DA was invalid, the Court applied the reasoning of Spigelman CJ in Currey v Sutherland Shire Council and Russell 1. The prohibition in section 76A of the EP&A Act prohibits development without consent, where an EPI provides that development may not be carried out except with consent. There is no prohibition on making a development application for development which does not require consent.

On that basis, the Court held that it is open to an applicant to make a development application for any development, and it falls to the consent authority to determine the extent to which the development is permissible under the applicable EPIs, and grant consent accordingly.

To the extent the Panel did in fact grant consent for those parts of the DA that did not require it, the Court held that this consent was merely superfluous and therefore of no legal effect. This did not invalidate the DA, it simply meant no application was required and the action of granting consent had no effect.

Did the Court have power to determine the DA?

On the question of whether the Court had jurisdiction to determine the DA, the Court accepted that it cannot give consent to works not requiring consent, however this does not result in a lack of jurisdiction in the proceedings. The right of appeal in section 98 of the EP&A Act allows appeals against determinations by consent authorities, rather than against the consent itself. It is also within the Court's power to grant consent to only a part of a development application (i.e. the part of the DA within the wetlands).

Not only did this mean the Court had jurisdiction, but that the Objector's third ground of challenge was defeated, because determining the part of the application located within the wetlands was within the Court's jurisdiction. Asking the Court to determine only part of the application did not constitute a change to the application.

Conclusion

This case highlights some important procedural principles in making and determining development applications, both in relation to how EPIs should be interpreted where multiple EPIs apply to the same land, and what constitutes a valid development application. It also confirms that the Court has jurisdiction to consider and grant consent in respect of only part of a development.

Footnote

1 [2003] NSWCA 300; (2003) 129 LGERA 223 at [35].

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Rebecca Hiscock
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.