Posted on May 7, 2024 by Katie Mortimer and Bianca Crapis
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A Reminder from the LEC that there is no power to grant partial consent to a prohibited development
Section 4.16(4) of the Environmental Planning and Assessment Act 1979 (EPA Act) allows a consent authority to grant either total or partial consent to a development application, by granting development consent to either:
- the development for which the consent is sought, or
- that development, except for a specified part or aspect of that development, or
- a specified part or aspect of that development.
The recent decision of the Land and Environment Court in Edwards Pension Fund Pty Ltd v Wingecarribee Shire Council [2024] NSWLEC 1177 serves as a reminder that section 4.16(4) cannot be utilised to make prohibited development permissible.
Background
The proceedings concerned a development application seeking to extract water from existing licensed water bores on a site in Canyonleigh, then pipe, filter, store and transport that water from the site (Proposal).
The primary issue between the parties was the characterisation of the Proposal. The local council contended that the Proposal was for the prohibited purpose of either ‘general industry’ or ‘light industry’. The applicants submitted that the Proposal was for the permissible purpose of a ‘water storage system’, or alternatively a ‘water reticulation system’.
The Commissioner agreed with the council, finding that the Proposal was for the purposes of either light or general industry.
The Commissioner relied on well-known principles to characterise the purpose of development. Key to the Commissioner’s conclusion was the volume of water that was proposed to be pumped through the site each day, with Gray C finding that the storage of water on site would be transient and subordinate to the purpose served by the development as a whole, being the production of extracted groundwater that can be made suitable for consumption.
No power to grant partial consent to prohibited development
In the event that the Commissioner found the Proposal prohibited, the applicants had invited the Court to exercise its power under s 4.16(4) of the EPA Act to grant consent to the development as proposed except for a proposed filtration system. The applicants stated that if it was the proposed treatment of water that caused the Court to find the Proposal was something other than the permissible use of a ‘water storage facility’, than the Court could not approve that treatment equipment.
The Commissioner made the following comments on the applicants’ invitation:
- Part 4 of the EPA Act only allows a development application to be made for development that may not be carried out except with development consent. Therefore, there must first be a development application for development that is permissible with development consent before the power in s 4.16(4) can be exercised to grant total or partial consent. A development application for prohibited development is not an application for the purposes of the EPA Act.
- The Court had no power to consider a development application that is not the subject of the appeal. More specifically, the removal of the filtration equipment from the proposed development would result in the Court considering an “alternative, hypothetical development application that is not before the Court.”
The result was that even if part of the Proposal could be excised to resolve the issue of permissibility, the development application itself would remain for prohibited development and accordingly the Court had no jurisdiction to grant development consent to it.
Noting that a development application for prohibited development is not an application for the purposes of the EPA Act, it appears that even if the applicants had conceded that the development as proposed was prohibited, they could not have amended the development application to excise any part of the development to resolve the issue. Instead, they would have needed to lodge a fresh development application with the local council.
Whilst this judgment is consistent with previous decisions of the Court, it emphasises the need for consent authorities to take care when dealing with applications which they consider may be for a prohibited use.
The full judgment of the Commissioner can be read here: Edwards Pension Fund Pty Ltd v Wingecarribee Shire Council [2024] NSWLEC 1177.
To discuss this post, please contact Katie Mortimer on 8235 9716 or Bianca Crapis on 8235 9728.
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