Posted on October 20, 2016 by Frances Tse

Construction impact of concept proposals – a mandatory consideration or not?

In one of the few cases considering the scheme for concept proposals in the context of staged development applications, the Land and Environment Court (‘LEC‘) has determined whether construction impacts are mandatory relevant considerations when assessing a purely conceptual proposal for development under a staged development application. [Update – This decision has been overturned by the Court of Appeal: see here]

The proceedings before the LEC in Bay Simmer Investments Pty Ltd v The State of New South Wales [2016] NSWLEC 123 involved a decision by the delegate of the Minister for Planning to grant consent to a concept proposal for the Walsh Bay Arts Precinct (‘WBAP‘).

The concept proposal approved by the delegate was described as comprising an integrated performing arts and cultural precinct including a new waterfront public square, a stage and shade structure, the adaptive reuse of a pier, the refurbishment of a wharf and the use of the precinct for arts festivals, events and pop-up and associated uses.

The WBAP is a state significant development and the applicant, who runs a business at Walsh Bay, brought judicial review proceedings challenging the grant of development consent by the Minister’s delegate.

The key factual ground of challenge was the decision of the Minister’s delegate not to assess and consider construction impacts of building the WBAP, such as noise, vibration and traffic, when approving the concept proposal, even though the concept proposal did not seek approval for the construction of any works or the use of any part of the proposal. Any construction works were to be the subject of future development applications.

The applicant unsuccessfully argued that the only difference between a concept proposal for staged development under Division 2A of Part 4 of the Environmental Planning and Assessment Act 1979 (‘EPA Act‘) and a development application under Division 2 of Part 4 of the EPA Act is that a concept proposal is less detailed and a development application is more detailed. The applicant argued that a concept proposal still sought consent for development and must be assessed in the same way and subject to the same mandatory relevant considerations under s79C of the EPA Act as a development application but only at a higher level of generality. As such, it was argued that the assessment of a concept proposal did not mean that a whole class of impacts did not need to be considered.

The Court preferred the State of NSW’s argument that properly understood, a concept proposal is distinguished from other development applications under the EPA Act. The Court agreed that the fact that the EPA Act permits the grant of a development consent to a ‘concept proposal‘ cannot be ignored.  The word ‘concept’ was accepted as meaning ‘a general notion‘ or ‘a thought, idea, or notion, often one deriving from a generalising mental operation‘, as opposed to development consent for a form of physical development.

The Court agreed that while s79C of the EPA Act applied to the determination of a concept proposal for staged development, it is clear that not all of the listed matters ‘are of relevance to the development the subject of the development application‘, particularly in respect of a concept proposal that does not seek approval for demolition, construction, erection, the use of land or subdivision. Assessment of a ‘usual’ development application under s79C requires consideration of a proposal that will result in physical work taking place subsequently if the development application is granted, whereas the statutory scheme in Division 2A expressly provides for the approval of a concept.

As such, construction impacts were not considered mandatory relevant considerations in assessing the concept proposal in this case.

The decision makes it clear that there is a distinction between a development application made under Division 2 of Part 4 and one made under Division 2A.  The fact that this development was a state significant development did not change this.  While the Court made clear that assessment of a ‘usual’ development application under Div 2 of Part 4 requires consideration of the impacts of a proposal that results in physical work taking place, what is a relevant consideration under s79C of the EPA Act for the purposes of a concept proposal was not specified by the Court. While it will not include construction impacts if approval for construction work is not sought, what other impacts must be addressed was not considered.

The case can be found using this link.