Council resolutions referring planning proposals to Greater Sydney Commission ruled invalid

01 March 2019

In the recent decision of Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2018] NSWCA 304, the New South Wales Court of Appeal (Court) considered whether Council resolutions referring a planning proposal to the Greater Sydney Commission for gateway determination were invalid.

The Court also considered whether Council, as the planning proposal authority, was required to comply with clause 6 of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) when preparing a planning proposal.

Partner Paul Lalich and Associate Andrew Scully comment below.

Were the Resolutions Reviewable?

The Court reasoned that while Council did not write the planning proposal itself, the resolutions were ‘steps taken’ to prepare a planning proposal, and as the resolution authorised the forwarding of the planning proposal to the Commission, were a necessary step ‘after preparing a planning proposal’ under s3.34(1) (formally s56) of the Environmental Planning and Assessment Act 1979 (Act).

Accordingly, the Council resolutions were within the meaning of s3.33 (formally s55) of the Act, and therefore grounded in a statutory provision and reviewable.

Was the Planning Proposal Authority Required to Comply with Clause 6?

The Court held that as clause 6 expressly refers to the functions involved in ‘preparing’ an EPI, which are distinct from those functions involved in the ‘making’ of an EPI, the preparation of an EPI also includes the time at which a planning proposal is finalised by a planning authority (as required by s3.33) and submitted to the Commission or Minister (under s3.34(1) of the Act).

The Court rejected the argument that clause 6 of SEPP 55 creates ‘stand alone’ requirements which could be satisfied at any time prior to the ‘making’ of an Environmental Planning Instrument (EPI) under s3.36 (formally s59) of the Act.

Accordingly, as Council is the planning authority responsible for preparing the planning proposal under ss3.33 and 3.34(1) of the Act, it is also the planning authority referred to in clause 6. As a result, it is Council that bears the responsibility to comply with clause 6.

How this Decision Affects You

The importance of compliance with clause 6 at the ‘preparation’ stage of the planning proposal process is twofold.

First, should the planning approval authority fail to comply with clause 6, any attempt to forward the planning proposal on to the Commission or Minister under s3.34(1) will be an unlawful exercise of power and any resultant gateway determination or EPI will be invalid.

Second, based on the comments of Basten and Payne JJA, a failure to comply with clause 6 at ‘preparation’ stage may frustrate the public consultation requirements of the Act. Given this, it is likely that s3.34(8) of the Act will not be available to cure any invalidity, as an EPI cannot be made unless compliance with the community consultation requirements under Schedule 1 of the Act are satisfied.

This article was written by Paul Lalich, Partner, and Andrew Scully, Associate.

Paul Lalich

P: +61 2 9334 8830


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