Posted on December 14, 2023 by Stuart Simington
Consent granted to development in breach of development standard not invalid – again
In Lahoud v Willoughby City Council  NSWLEC 117, the Land and Environment Court applied the recent decision of the Court of Appeal in El Khouri v Gemaveld Pty Ltd [2023) NSWCA 78 in rejecting a challenge to a consent granted by the Willoughby Local Planning Panel.
The plans before the Panel (arguably) showed that the development exceeded the maximum floor space ratio. But the Council’s assessment report agreed with the developer’s assessment that there was compliance. No clause 4.6 objection was submitted in support of the development application (DA).
In El Khouri (which we wrote about here) the Court of Appeal decided (somewhat controversially in our view) that, while environmental planning instruments are a mandatory ‘consideration’ by reason of s 4.15(1)(a) of the EPA Act, these are only to be considered at the time the power to determine a development application is exercised but are not jurisdictional. Unlike the conventional assumption, the Court of Appeal held that compliance with an environmental planning instrument is not a jurisdictional prerequisite to the power to grant consent. In fact, where regard is given to a development standard in an environmental planning instrument based on evidence that there is compliance with same, the decision to grant consent is not invalidated merely because it can be established by evidence not available to the decision maker, that there was non-compliance with the standard.
In Lahoud, the Court has apparently taken the matter a step further. The Applicant sought to argue that El Khouri could be distinguished because the plans before the local panel for which approval was sought did in fact clearly show that the development did not comply with the floor space ratio control; this even though an assessment report before the panel indicated that the development did comply.
The Applicant also argued that El Khouri was wrongly decided in any event.
18. Finally, we respectfully submit that the decision in El Khouri was plainly wrong in concluding that planning instruments had no force in themselves because nothing in the EPA Act gave them force, as it overlooked the provisions of the Act that lend force to planning instruments otherwise than as s 4.15 factors for consideration, and the binding authority of Hillpalm Pty Ltd v Heavens Door Pty Ltd (2004) 220 CLR 472, which emphasised the pivotal provision of former s 76A which required compliance with the provisions of planning instruments in carrying out development (at ,,), a point with which Kirby J in the minority agreed: [88). Without such compliance, development was unlawful and penalised. Equally, an EPI Is deemed to be the Act for the purposes of enforcement, so that a breach of the instrument is a breach of the Act. The instrument is therefore picked up and applied by the Act. and a breach (including a failure to comply) or threatened breach opens the wide remedial palette available for enforcement ‑ and judicial review. These are also proceedings for enforcement. as the grant of consent was allegedly unlawful as in breach of the Act.
19 El Khouri did not cite Hillpalm, the leading case on the construction of these provisions of the EPA Act (albeit dealing with the enforcement of a condition of consent rather than an instrument, but the High Court dealt with the two without distinction in its commentary on former s 76A). It was therefore decided per incuriam.
Moore J rejected the challenge and considered that he was bound to do so based on the Court of Appeal decision in El Khouri.
248.It is clear from a proper reading of the material …, that the Planning Panel had regard to the Council assessment report …
250. This, I am satisfied, demonstrates that the Planning Panel had had regard to matters in the assessment report raising submitter concerns about cl 4.4 of the LEP and had formed the view, based on the evidence before them in the assessment report (there being no other evidence of any other matters pressed to the Planning Panel concerning cl 4.4 of the LEP), and had formed the view … that the proposal was compliant with cl 4.4 of the LEP.
Moore J was unwilling to permit the Applicant to rely on expert surveying evidence demonstrating that the plans before the panel evidenced a breach of the floor space ratio control:
‘To the extent that the Applicant now seeks to rely on the surveying evidence – evidence which is “fresh” in the sense that it was not available to the Planning Panel – this approach is inconsistent with what the Court of Appeal has held in El Khouri … This surveying evidence can, consistent with El Khouri, not provide any support for [the Applicant’s claim]….In light of that, I am satisfied on a proper understanding of …El Khouri, that, .. on the basis of the post-determination surveying evidence given …that cl 4.4 is not satisfied, the complaint must fail, and the ground be rejected.’
We, as did the Applicant in this case, consider that the decision in El Khouri is anomalous. Nevertheless, unless and until it is reversed or the EPA Act amended to make it clear(er) that compliance with development standards is a jurisdictional prerequisite to the power to grant a development consent, the decision in Lahoud suggests that the integrity of the planning system in terms of compliance with development standards very much depends on the competency of assessments. The Court has given short shrift to the notion that a consent authority (in this case the local planning panel) is required to review plans to determine for itself that there is compliance with development standards before granting a consent.
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