Posted on April 21, 2022 by Katie Mortimer and Stuart Simington

A Reminder of the Importance of Information Addressing Jurisdictional Preconditions in Development Appeals

In the last 5 years, jurisdictional preconditions — being matters that must be considered or satisfied prior to the grant of development consent — have been under the microscope in the determination of development appeals by the Land and Environment Court.

Whilst the requirements were always applicable, it is no longer the case that to receive development consent from the Court, a proponent need only concern itself with satisfying the contentions raised by the relevant consent authority. Two recent decisions operate as reminders of this.

Failure to Provide Sufficient Information Addressing Contamination: Barel v Randwick City Council [2022] NSWLEC 1176

This case concerned a development application proposing the demolition of existing structures and the construction of a two-storey attached dual occupancy at land in Malabar (DA).

Prior to determining the contentions that Council had raised in the proceedings or any merit issues, Commissioner Dickson considered the relevant jurisdictional preconditions. Amongst other things, this included consideration of whether the land was contaminated (as required by new clause 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 – former SEPP 55).

The relevant jurisdictional precondition provided in the SEPP, is that, ‘a consent authority must not consent to the carrying out of any development on land unless—

(a) it has considered whether the land is contaminated, and

(b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and

(c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.’

Neither the Statement of Environmental Effects or the Geotechnical Desktop Study accompanying the DA contained any assessment of the potential for contamination on the subject land.

As a result, the Court could not carry out the consideration that was necessary to grant development consent. Commissioner Dickson commented that in order for the DA to be approved, the applicant in the proceedings should have provided:

additional information to allow the consent authority to complete a consideration of the likelihood of contamination based on at least an investigation of the previous development application history of the site, perusal of historic aerial imagery and a site inspection to allow the consent authority to undertake the consideration required

Elsewhere in the decision, the Commissioner cited an accepted principle that in development appeals, it is the applicant for development consent who bears the persuasive burden of satisfying the Court that development consent ought to be granted.

No Requirement for Respondent to Raise Statutory Requirements: Jeffrey v Canterbury Bankstown Council [2021] NSWLEC 73

In addition to this principle, Chief Justice Preston stated last year that respondents in development appeals do not need to raise statutory requirements in order to make those requirements a principal contested issue in proceedings.

His Honour was determining an appeal from a Commissioner’s decision, where the appellant argued that she was denied procedural fairness by virtue of the Commissioner hearing the proceedings failing to warn her that he may find the clause 4.6 request submitted with the DA to be insufficient.

Significantly, Chief Justice Preston stated at [85] that:

‘The issue of whether the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3), including that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, is necessarily a principal contested issue in any case in which a proposed development contravenes a development standard. It is a principal contested issue because the statutory provisions make it so. Clause 4.6(3) and (4) preclude the Court, exercising the function of the consent authority on appeal, from granting development consent unless the Court considers the written request and is satisfied that the written request has adequately addressed the matters required to demonstrated by subclause (3). It is not necessary, in order to become a principal contested issue, that these statutory requirements be raised by the respondent, usually the local council, as an issue in the statement of facts and contentions. The matters raised by the statutory provisions of cl 4.6(3) and (4) are jurisdictional: the Court cannot grant development consent for development that contravenes a development standard unless the matters raised by the statutory provisions are satisfied. Such matters will be principal contested issues regardless of whether the parties raise them …’

[our emphasis]

Lesson: An Applicant must always provide sufficient information to address any jurisdictional preconditions 

These decisions reinforce that the onus is always on an applicant for development consent to establish that any preconditions to the grant of development consent can and will be met.

This onus exists irrespective of whether or not the respondent in the proceedings raises the precondition as a contested issue.

However we do note that in the Barel decision, the Commissioner determined to refuse the DA not on the grounds of insufficient information addressing contamination alone, but also for reasons contended by the Council. Had it only been the contamination issue precluding the grant of development consent, there may have been grounds for the proceedings to be adjourned to allow the applicant to provide that information: see relevantly the decision of HP Subsidiary Pty Ltd v City of Parramatta Council [2020] NSWLEC 135.

You can read the decisions the subject of this post here: Barel v Randwick City Council [2022] NSWLEC 1176 and here: Jeffrey v Canterbury Bankstown Council [2021] NSWLEC 73.

In this post, we discussed the 2018 Court of Appeal decision, Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245, which caused significant changes to the way LEC judicial officers draft decisions giving effect to s34 agreements.

In this post, we also discussed how jurisdictional prerequisites could not be addressed by way of condition of consent, examining two cases where the LEC required evidence to form the requisite state of satisfaction.

If you wish to discuss the issues raised in this post, please contact Stuart Simington on 8235 9704 or Katie Mortimer on 8235 9716.