Proceed with Caution: Amber Light Approach considered by the Court of Appeal

For a number of years now, the LEC has adopted an approach which has become known as the “Amber Light Approach” to the merit assessment and determination of development applications in Class 1 of its jurisdiction. Although it has been accepted that this approach has no statutory basis the Court has nevertheless accepted the approach to be established and circumscribed by a series of decisions in the LEC.

The Amber Light Approach is when the Court not only considers the question of whether the proposal should be approved in the form that is before the Court but whether the proposal is capable of approval, with specified modifications imposed by the Court, within the scope of the application before the Court: see The Benevolent Society v Waverley Council [2010] NSWLEC 1082.

In the recent case of Ku-ring-gai Council v Bunnings Properties Pty Ltd [2019] NSWCA 28 the Court of Appeal had reason to consider whether the approach taken by a Commissioner of the LEC in approving the development application in a manner similar to the Amber Light Approach was a lawful decision within the power of the Court.

Commissioner Brown heard Bunnings’ application for a new Bunnings Warehouse in Gordon in the Class 1 jurisdiction of the LEC where the Commissioner found that he was not satisfied that the proposed development was acceptable in the form submitted, but allowed Bunnings to amend the application in response to the issues identified by the Commissioner. Bunnings was granted leave to rely on amended plans and a second hearing was held before the Commissioner where he found that the amended development application was acceptable and granted development consent subject to conditions: see Bunnings Properties Pty Ltd v Ku-ring-gai Council [2016] NSWLEC 1658.

The Council appealed the Commissioner’s decision under s56A of the Land and Environment Court Act 1979 (LEC Act) where the Council raised two primary issues:

1. The Commissioner failed to exercise jurisdiction by not disposing of the appeal and instead adopting an ‘amber light approach’ by allowing Bunnings to amend the development application and determining to grant consent to that amended application; and
2. The Commissioner’s decision was illogical and legally unreasonable as it permitted the removal of a tree of high significance.

On 28 February 2018 the Council’s s56A appeal was dismissed by Sheahan J. The Council sought leave to appeal from the LEC under s 57(4) of the LEC Act against the decision and orders of the primary judge made on the s 56A appeal.

The issues raised on appeal were substantially the same as those in the s 56A appeal. The question for the Court of Appeal was whether the primary judge had erred in law by not finding that the Commissioner had acted outside of power in one of two ways raised:

(i) Whether the Commissioner acted outside of power by not finally disposing of the appeal in the first judgment and instead allowing Bunnings to amend the development application and then granting consent to the amended development application; and

(ii) Whether the Commissioner’s decision was legally unreasonable by allowing the removal of a tree of high significance.

In this article we have focused on the decision to allow amendment and grant consent to the amended application.

In an appeal Court constituted by the then President of the Court of Appeal Beazley J, Basten J and the Chief Judge of the LEC Preston J the Court of Appeal found that the consideration of the Commissioner’s exercise of the power is to ask whether allowing Bunnings to amend the application and then grant consent to the amended application was within functions conferred on the Court by the EPA Act and LEC Act and not by labelling the approach taken as the Amber Light Approach. In the majority judgment written by Preston J (Basten J dissenting) the Court of Appeal found that the Commissioner had acted within power because:

1. The Commissioner did not exercise the determination power under section 80 (now s 4.16) of the EPA Act when he delivered his first judgment but that that power was exercised when the Commissioner granted consent to the amended application; and
2. An appeal to the Court under s 97 (now 8.7) of the EPA Act requires a Commissioner to undertake a merits review of a refusal by way of a hearing de novo and there is nothing which requires a Commissioner to hear and dispose of an appeal by way of final determination in a single judgment.  It is well within power to make interim findings.

Although the approach taken by Commissioner Brown seemed to be what has become known as the Amber Light Approach, Preston J stressed that the correct way to look at the exercise of the power is whether the exercise has occurred within the functions conferred on the Court by the EPA Act and LEC Act. His Honour then went on to make a number of observations about the Amber Light Approach as follows:

1. The amber light approach is problematic in many ways. It is an artefact, invented and labelled by a Commissioner. It has no statutory basis in the EPA Act, the LEC Act, any court rule in the Land and Environment Court Rules 2007 or the Uniform Civil Procedure Rules 2005, or any Practice Note or Policy of the Court. Per Preston J at [200];
2. The approach diverts attention from the functions being exercised by the Court in hearing and disposing of an appeal under s 97 now s 8.7 of the EPA Act. The functions are to consider (under s 4.15 of the EPA Act) and to determine (under s 4.16 of the EPA Act) the particular development application that is the subject of the appeal. The Court has no power to consider (under s 4.15 of the EPA Act) development that is not the subject of the development application or to determine (under s 4.16 of the EPA Act), by granting or refusing consent, a development application that is not the subject of the appeal. Per Preston J at [202]; and
3. The constraints on the amber light approach suggested by Commissioners and judges of the Court who have considered the approach risk imposing terms on the Court’s exercise of the functions of determining the development application and hearing and disposing of the appeal that have no basis in or are inconsistent with the statute conferring those functions. These suggested constraints on the amber light approach do not have an express basis in the functions being exercised by the Court on appeal. They are not to be found in the express terms of ss 4.16 or 4.17 of the EPA Act. Per Preston J at [207] and [208].

In our view, the Court of Appeal’s judgment will see the essence and spirit of the Amber Light Approach continue to allow beneficial and facultative amendments to be made to development applications without its historical label.

This article was written by Jane Hewitt, Partner and John Paul Merlino, Special Counsel.

Jane Hewitt

P: +61 2 9334 8639

E: jhewitt@hwle.com.au