Australia: Setting the stage for a valid consent for staged development in NSW

Developers and consent authorities will need to address construction impacts for a multi-stage development proposal when preparing and assessing a development application for the concept stage of that proposal. Also, staged development consent for single stage developments is no longer available.

In a surprising outcome for developers and consent authorities alike, the NSW Court of Appeal has overturned a NSW Land and Environment Court (L&E Court) decision and held that:

  • construction-related impacts for a staged development proposal must be addressed in the development application (DA) for the concept or first stage of that proposal; and
  • the staged development consent process can only be used for developments with more than one stage, and so the widely used practice of obtaining concept approval for a single stage development before obtaining detailed consent for the construction and use of that proposal is no longer available.

The Court of Appeal was responding to a legal challenge to the concept development consent for the $210 million arts precinct at Walsh Bay between the Barangaroo headland and Dawes Point Park. The owner of a local restaurant brought the legal challenge, claiming that it had not been consulted about the impacts of the future construction of that proposal on its business.

The L&E Court dismissed the legal challenge, in one of the first cases to consider specifically the statutory scheme for concept proposals in staged DAs under Part 4 Division 2A of the Environmental Planning and Assessment Act 1979 (Planning Act). However, the Court of Appeal unanimously overturned that decision (Bay Simmer Investments Pty Ltd v State of New South Wales [2017] NSWCA 135).

What is a staged development application?

Section 83B of the Planning Act defines a staged DA as a DA that sets out "concept proposals" for the development of a site, and for which "detailed proposals for separate parts of the site" are to be the subject of separate DAs.

The staged DA scheme is commonly used by proponents of large-scale or complex development with multiple stages. It is often accompanied by a detailed proposal for the first stage, such as subdivision and preliminary works, or demolition, which can be approved with the development concept.

Sometimes a concept DA and consent are referred to as a "stage 1" DA and consent, even though they do not relate to a particular stage of the development.

The advantages of a concept development consent include that:

  • it provides some early acceptance of a development concept, giving proponents, financiers and other stakeholders greater confidence that detailed proposals will be approved; and
  • it locks in key design parameters of a proposal, such as land uses, building envelopes and allocations of gross floor area (GFA), since subsequent development consents must not be inconsistent with that concept consent.

For these reasons, staged approvals are also used sometimes for large scale, single stage developments. This has allowed deferral of requirements such as design competitions or the preparation of a development control plan (DCP).

The Walsh Bay DA and the L&E Court decision

In 2015, Arts NSW lodged a State significant development (SSD) application for the Walsh Bay Arts Precinct. The DA sought consent for the "overall Precinct concept only", which included a new waterfront public square, the refurbishment of a wharf, the adaptive reuse of a pier and the use of the Precinct for arts festivals and cultural events.

The technical assessment reports submitted by Arts NSW in support of the DA recognised that the physical construction of the Precinct would have adverse noise, vibration and traffic impacts on surrounding businesses. However, Arts NSW stressed that the concept DA would be followed by "one or more" detailed DAs which would address the construction-related impacts.

The Planning Minister's delegate granted the concept consent subject to a condition requiring any future detailed DA to demonstrate how the construction-related impacts would be addressed. The delegate did not consider those impacts because they would be taken into account in the future detailed DAs.

Fearing the possibility that the concept consent would inevitably lead to detailed consents, the neighbouring restaurant owner challenged the validity of the concept consent. The crux of the objector's case was that the Minister's delegate had impermissibly deferred a critical matter for later consideration (ie. construction impacts), and so had made a legal error which rendered the concept consent invalid.

In dismissing the challenge, the L&E Court decided that, because the concept DA did not itself propose the carrying out of any construction work, the construction-related impacts were not direct or indirect consequences of the concept and there was no need to consider them for that DA.

The problems with the Land & Environment Court's approach

The Court of Appeal overturned the L&E Court's decision and found that this approach was wrong for two reasons.

First, the Planning Act's staged development consent scheme does not allow for single stage developments. The structure, purpose and language of Part 4 Division 2A of the Planning Act, especially the provision for "detailed proposals for separate parts of the site", required at least two detailed stages. Although the Arts NSW DA envisaged "one or more" detailed DAs, it did not commit the proponent to more than one further DA, nor did it specify "separate parts of the site" which were to be the subject of the subsequent detailed DAs.

Second, there is no basis in the language of the Planning Act to suggest that the assessment process at the concept stage should be limited to the impacts of the concept only. The Court observed that it would be curiously artificial to assess a concept DA on the basis that the completed development had simply materialised, without regard to how it had materialised (ie. construction).

What does this mean in practice?

The Court of Appeal's decision will put an end to single stage concept DAs, and will mean that all concept DAs need more detailed assessment of construction impacts for all stages of the development proposal. This is likely to add cost and time to the concept DA process.

It might also prompt challenges to other single stage concept approvals, where these are not time-barred.

The Court of Appeal's reasoning could extend to other impacts of a staged development as well, requiring more consideration of impacts at the concept stage.

There have been calls for the NSW Government to propose amendments to the Planning Act to reverse the effect of the Court of Appeal's decision. It remains to be seen whether that will occur.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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

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

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
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (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

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’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.


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.


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 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.


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.


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.


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.


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

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

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

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