What’s in a date?
The date on which a development application is made or lodged under the Environmental Planning and Assessment Act 1979 can be critical in determining the legislation and planning instruments that apply to proposed development, including its permissibility or even its viability. It is also critical in determining when an appeal can be commenced against a consent authority’s deemed refusal of a development application.
The days of ‘instant’ lodgement over the counter are long gone, and there is more potential for uncertainty and delay now that the process involves some online back and forth between the applicant and consent authority via the NSW Planning Portal.
Court of Appeal decision in Hinkler
In a decision handed down on 2 November 2023, the Court of Appeal confirmed that the provision of information and documents prescribed under the regulations, including the payment of the development application fee (after the consent authority has determined the amount and notified the applicant), are essential conditions for the making of a development application.
This was the first time the Court had considered the steps in the development application process since the statutory scheme for making development applications was changed, and the requirement for documents to be electronically uploaded to the NSW Planning Portal1 (Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264).
Applicants may be prejudiced by delay
The Court acknowledged that the time which elapses between the applicant providing the requisite information for a development application and being notified of the fee by the consent authority may prejudice an applicant. However, it noted that if there is delay in notifying an applicant of the fee payable, it is for an applicant to take matters into their own hands and seek an appropriate order from the Court that the consent authority determine and notify the fee payable to the applicant if necessary.
While not necessary to determine in the appeal, the Court also discussed the importance of the consent authority confirming lodgement of a development application via the Planning Portal after payment of the fee, with the majority expressing a view that this is the end point in the development application process. If that view is adopted, similar issues are likely to arise if the consent authority delays in entering the confirmation of lodgement on the Portal after a fee is paid. Again, it would be for an applicant prejudiced by such delay to seek orders that the consent authority do so.
The facts of the case and the Court’s findings are considered further below.
Hinkler Ave 1 Pty Limited v Sutherland Shire Council
The applicant, seeking development consent from Sutherland Shire Council for a mixed use development, submitted a development application form and a number of documents through the Portal on 22 October 2021.
Council made requests for additional information from the applicant and, after the applicant’s responses were received, issued an invoice on 2 December 2021 for the development application fee – all via the Portal. The applicant paid the fee on 9 December 2021. On 13 December 2021, notice was given to the applicant via the Portal that the development application had been lodged.
State Environmental Planning Policy (Housing) 2021 (SEPP) commenced on 26 November 2021 and included the savings provision that it did not apply to a development application “made, but not yet determined” on or before its commencement date. The question of when the development was “made” was therefore determinative of whether the new SEPP applied, or the less onerous provisions of the former instrument (State Environment Planning Policy (Affordable Rental Housing) 2009) – was it “made” when documents were uploaded to the Portal on 22 October 2021, when the additional information was provided by the applicant, or sometime after?
Decision of Moore J at first instance
At first instance,2 Moore J of the Land and Environment Court considered the issue as a separate question of law in a class 1 merit appeal against Council’s deemed refusal of the development application. His Honour determined that as at the SEPP’s commencement date, the development application had not been made because the council was not satisfied that the necessary plans had been provided under the Environmental Planning and Assessment Regulation 2000,3 nor had the development application fee been paid.
Adopting the reasoning of Pain J in Commitment Pty Ltd v Georges River Council (No 2) [2022] NSWLEC 94, his Honour concluded that the development application was made on 9 December 2021, the date the fee was paid. The development application was therefore subject to the new SEPP.
Court of Appeal’s decision
On appeal, the Court of Appeal confirmed that the development application was not made as at 26 November 2021 and dismissed the appeal.
The Court agreed that the provision of information and documents prescribed under the regulations, and lodgement (following the payment of the development application fee), are essential conditions for the making of a development application. The longstanding position, reflected in Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 31, remains unchanged despite the legislative changes to the form and manner in which development applications are made (via the Portal).
While it was not necessary to determine the date the development application had been made, Basten AJA (with whom Gleeson JA agreed) expressed the view that it was on 13 December 2021, when council gave the required notice to the applicant via the Portal that the development application had been lodged.4
Preston CJ, however, appeared to hold the same view as the court below, that the development application was made on 9 December 2021 when the fee was paid.5
Concluding comments
This case confirms that a development application must substantially comply with the requirements of the EP&A Act and its regulations, which includes payment of the development application fee – after the consent authority has determined the amount and notified the applicant.
A consent authority’s delay in notifying an applicant of the fee payable, or confirming lodgement after the fee is paid, may result in proceedings being commenced against the consent authority by applicants who are prejudiced by such delay.
As already noted, the question of when a development application is made or lodged is a significant one. It can determine the applicability of legislation and planning instruments and when an appeal can be commenced against a consent authority’s deemed refusal of a development application.
It is questionable that the legislature intended that these matters would ultimately turn on when a consent authority actions a Portal notification confirming lodgement, at some unspecified time after all necessary information has been submitted to allow the development application to be determined, and the fee has been paid. If this was not its intention, it’s a matter worthy of clarification in the legislation given its potential significance.
This article was written by Danielle Le Breton, Partner and Louise McAndrew, Special Counsel.
1 Environmental Planning and Assessment Amendment (Planning Portal) Regulation 2021, commenced 16 April 2021.
2 Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2022] NSWLEC 150
3 cl 50(1)(c) and Sch 1, cl 2(1)(d) of the Environmental Planning and Assessment Regulation 2000
4 cl 50(8) of the 2000 Regulation; s24(4) Environmental Planning and Assessment Regulation 2021
5 At [160-161]
