What Constitutes the Making of a Development Application?
The date on which a development is properly made is important when dealing with transitional and savings provisions relating to the repeal and replacement of environmental planning instruments (SEPPs, LEPs), and whether a development application is to be assessed under the repealed or new regime. In the recent decision of Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2022] NSWLEC 150, the Court was required to resolve a separate question as to whether a development application was “made” on or before the repeal of State Environmental Planning Policy (Affordable Rental Housing) 2009 on 26 November 2021. The Court determined that it was not in this instance, with the judgment providing some useful guidance – and some cautionary observations – on the making of development applications.
Background
On 26 November 2021, the State Environmental Planning Policy (Housing) 2021 (2021 SEPP) repealed and replaced the State Environmental Planning Policy (Affordable Rental Housing) 2009 (2009 SEPP).
The savings provision in the 2021 SEPP (at clause 2(1)(a) of Schedule 7A) effectively provided that the 2021 SEPP does not apply to a development application “made, but not yet determined, on or before the commencement date”, and that “the provisions of a repealed instrument, as in force immediately before the repeal of the repealed instrument, continue to apply …”. The commencement date was 26 November 2021.
The applicant was keen to ensure that its development application was assessed under the 2009 SEPP, as the ‘dedication period’ of various apartments within the proposed development (designated as affordable rental apartments) was significantly shorter than the 2021 SEPP.
The applicant, aware of the pending repeal and replacement of the 2009 SEPP (although not the precise date, presumably), uploaded various architectural plans to the NSW Portal together with a completed development application form on 22 October 2021. Further documents were uploaded by the applicant to the Portal up until early December 2021 with respect to the development application.
The Council, up until early December 2021, was not satisfied that all the relevant documentation for the development had been uploaded to the Portal. For that reason, the Council refused to notify the applicant of the DA fee as required by cl 256(1) of the Environmental Planning and Assessment Regulation 2000 (2000 Regulation), then in force at the time.
Upon the applicant uploading further plans to the Portal on 1 December 2021, the Council was then satisfied that the development application was complete, and shortly after notified the applicant, via the Portal, of the development application fee, which was paid by the applicant on or about 13 December 2021.
Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2022] NSWLEC 150
The applicant commenced Class 1 proceedings against the deemed refusal of its development application. It was considered appropriate by the parties and the Court that the Court first determine, as a separate question, the date on which the development application was made for the purposes of clause 2(1)(a) of Schedule 7A of SEPP 2021.
The Applicant
The applicant contended that the architectural documents uploaded to the Portal on 22 October 2021 “substantially and sufficiently” complied with the requirements of the 2000 Regulation by 26 November 2021 so that the applicant’s development application should be held to have been made by that date. The applicant further submitted that the failure of the Council to discharge its mandatory obligation set by cl 256(1) of the 2000 Regulation 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 and was thus preserved to be assessed and determined pursuant to the 2009 SEPP, rather than the 2021 SEPP.
The Council
The Council submitted that only those plans uploaded after 26 November 2021 satisfied, in a concise and comprehensive fashion, the requirement of the 2000 Regulation. This meant that the obligation to determine and notify the development application fee as required by cl 256(1) of the 2000 Regulation was not triggered until these plans, which were compliant with Sch 1 of the 2000 Regulation, were uploaded to the Portal on 1 December 2021.
As the development application had not been lodged on or before 26 November 2021, in the Council’s view, it could not be regarded as having been “made” for the purposes of the savings provision in the 2021 SEPP and, therefore, the DA was to be assessed under the 2021 SEPP.
The applicant’s development application was made when the determined application fee was paid on 13 December 2021.
Findings
The Court held that the Council was correct to conclude that the development application was not properly to be regarded as having been made until the determined application fee was paid. The Court observed that this conclusion was consistent with the analysis of Pain J in Commitment Pty Ltd v Georges River Council (No 2) [2022] NSWLEC 94 concerning the relevant steps in the process necessary to regard a development application as being “made”.
A development application can only be regarded as having been “made”, for such a savings clause purpose, after the fee payable for such a development application has been paid to the consent authority. This is because it is “the completion of lodgement of a development application” which is to be regarded as its making for such transitional protection to be afforded to it.
The Court noted that, against the possibility that the above conclusion was incorrect and the architectural plans uploaded to the Portal on 22 October 2022 did satisfy the requirements the 2000 Regulation, the Court observed that it was open to the applicant to exercise its rights pursuant to s 9.45 of the Environmental Planning and Assessment Act 1979 and approach the Court to seek an order (to the effect of mandamus) through Class 4 proceedings to require the Council to determine and advise the applicant of the development application fee payable. The applicant did not exercise that right. The applicant, therefore “became the architect of its own fate triggered by the repeal and replacement of the 2009 SEPP by the 2021 SEPP.”
Observations
It is abundantly clear from the decision of Hinkler Ave 1 and Commitment that a development application will only be considered having been “made” for the purpose of relying upon a savings provision (and, presumably, for any other purpose), when that application is “complete”, with completeness requiring the payment of the prescribed fee payable to the consent authority. In summary, there is no avenue to lock-in or secure a date via the NSW Portal for the purposes of a pending or actual savings provision in the absence of lodging a complete application and paying the lodgement fee.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
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Author: Anthony Perkins
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