Posted on August 19, 2025 by Dimitrious Havadjia and Katie Mortimer
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Are the Integrated Development provisions of the EPA Act really ‘opt-in’?
It has been long accepted that the integrated development provisions in Division 4.8 of Part 4 of the Environmental Planning and Assessment Act 1979 (EPA Act) are ‘beneficial and facultative’, enacted to overcome duplication where, in addition to a development consent under the EPA Act, approvals under other legislation are required in order to carry out development.
Since Justice Lloyd’s decision in Maule v Liporoni [2002] NSWLEC 25, integrated development has been treated as an ‘opt-in scheme’, meaning a proponent may elect to have their development application treated as integrated development, or may elect not to do so.
A decision from a Commissioner of the Land and Environment Court earlier this year has brought the ‘opt-in’ nature of the scheme back into our focus.
Facts
In Artmade Architectural Pty Ltd v Central Coast Council [2025] NSWLEC 1249, the Court was considering a development application seeking consent to construct a childcare centre.
It was agreed that the proposed basement in the childcare centre necessitated an aquifer interference approval under the Water Management Act 2000 for dewatering works. The Applicant had not ‘ticked the box’ on its development application form, to opt in to the integrated development scheme.
The Controversy
The applicant commenced the appeal 41 days after the DA was lodged with Council, on the basis that the deemed refusal period of 40 days had passed (which applies to ‘standard’ DAs).
If a proponent seeks their development application be treated as integrated development, additional obligations are imposed on consent authorities to notify and receive comments from ‘approval bodies’ before determination of the application in a particular period. See our discussion about this in the post here.
The assessment period for integrated development longer than for standard development, 60 days instead of the usual 40 days, and longer periods of public notification can be required.
The Council contended that the proceedings were premature as the DA should be treated as being for integrated development. As integrated development has an assessment period of 60 days, if the DA was considered as such it would not have been ‘deemed refused’ as is required for an appeal to be commenced.
The Applicant referred to the decision in Maule as a basis for their right to elect that the DA was not ‘integrated development’. The Council argued that the wording of s4.46(1) of the EPA Act made the DA integrated.
Section 4.46(1) provides that: ‘integrated development is development… that, in order for it to be carried out, requires development consent and one or more of the following approvals…’. Because the approval under the Water Management Act 2000 was required in order for the development to be carried out, the Council submitted the DA was indeed for integrated development.
Findings & Implications
In deciding that the DA was in fact for integrated development, Dickson C did not refer to or distinguish the circumstances from Maule. Rather, the Commissioner applied principles of statutory interpretation, stating:
‘ …
(6) When ss 1.4 and 4.46 of the EPA Act are read together, a development application is integrated development if it requires an approval of the kind listed at s 4.46(1), in addition to development consent, in order for the development to be carried out. This is a finding of fact that arises from the application of the provisions.
(7) Whilst the development application form includes an option for an applicant to nominate that their development is integrated, in my view this does not subvert the effect of Div 4.8. In evaluating the development application under s 4.15 of the EPA Act, a consent authority is required to take into consideration such of the following matters as are of relevance to the development the subject of the development application. In this case, one of those matters is the application of s 4.46 of the EPA Act and a determination of whether the development application falls within the ambit of integrated development as defined by s 4.46(1) of the EPA Act.
…’
Dickson C consequently found that the proceedings were premature and the Court had no jurisdiction to determine the DA.
This decision is not binding, as Lloyd J’s decision in Maule is, but shows an interesting shift in how a Commissioner has applied the integrated development provisions. Proponents should be mindful of the relevant deemed refusal periods that apply to potentially integrated development applications.
We will post again if there is a binding change in approach from Maule.
You can read the decision in full here: Artmade Architectural Pty Ltd v Central Coast Council [2025] NSWLEC 1249.
If you would like to discuss this post please contact Dimitrious Havadjia or Katie Mortimer.
Thanks for sharing this! This question is raised every so often amongst our planning team, so I was hoping to get some clarification (for the non-lawyers!). Does this case confirm that ‘integrated development’ is not optional, and that any referrals must be made at the DA stage?
Or, do certain referrals remain optional but you still must identify if they are required for the purposes of categorising the DA and establishing which deemed refusal provisions apply?
Hi Jessica,
The Commissioner’s decision in Artmade is not binding on the Court and does not need to be followed by later decisions. Therefore, the binding position remains as stated by the Court in Maule, which is that integrated development is ‘opt-in’ and therefore optional.
Regardless of whether a development application is lodged as integrated development by the applicant, a consent authority may still consult another body in order to inform itself of the matters relevant to its assessment under s4.15 of the EPA Act.