Posted on July 3, 2017 by Stuart Simington 1

Staged Development Applications – Retroactive legislation to validate prior invalid approvals

The NSW Government has released a draft public consultation bill to amend the Environmental Planning and Assessment Act 1979 (EPA Act) with respect to staged development applications.

The amendment addresses the recent Court of Appeal decision which we have previously blogged on, which held that the practice of using a staged development application to obtain concept approval for single stage developments  was invalid.

The NSW Department of Planning and Environment has estimated that the Court of Appeal’s decision affects $8 billion of local, regional and state significant development applications, and could cause delays for the delivery of 14,500 homes across NSW.

To address this uncertainty, protect existing consents, and ensure the widely utilised practice of single staged concept approvals can continue, the NSW Government has placed a draft Environmental Planning and Assessment Amendment (Staged Development Applications) Bill 2017 (‘Bill‘) on public exhibition.

Concept development applications 

The Bill introduces ‘concept development applications’ (concept DAs) to replace the current term of ‘staged development applications’ (staged DAs).

Concept DAs are proposed to be a DA that:

‘sets out concept proposals for the development of a site, and for which detailed proposals for the site or for separate parts of the site are to be the subject of a subsequent development application or applications‘

As currently for staged DAs:

• a concept DA will not be treated as a concept DA unless requested by the applicant;
• if consent is granted to a concept DA, the consent does not authorise development unless the DA has provided the requisite details for development and the consent does not require a further consent, or consent is subsequently granted to carry out development on that part of the site following a further DA in respect of it;
• where any consent granted to a concept DA is in force, any further DAs in respect of the site cannot be inconsistent with the consent granted. This does not prevent modification of the concept consent.

When considering likely impacts under section 79C, the Bill proposes that a consent authority need only consider the likely impact of the concept proposal (and any further stage of development included in the concept DA). It does not need to consider the likely impact of the carrying out of development that may be the subject of subsequent development applications.

Retroactive validation of prior approvals

Importantly, the amendments specifically addresses the Court of Appeal decision in Bay Simmer Investments Pty Ltd v State of New South Wales [2017] NSWCA 135, by including a savings and transitional provision.  Anything done or omitted to be done before the Bill commences, that would have been valid if the Bill had been in force when the thing was done or omitted, is validated.  Therefore, the effect of the Court of Appeal’s finding in Bay Simmer has been retrospectively eliminated.

Submissions on the Bill can be made to the Department of Planning and Environment on the proposed changes until 24 July 2017.

Should you wish to discuss the contents of this blog, please contact Stuart Simington, Partner on stuart.simington@lindsaytaylorlawyers.com.au or 8235  9704.