Posted on August 18, 2022 by Liam Mulligan and 8

Court considers when a DA is ‘not yet determined’ under the savings provisions of Housing SEPP

The meaning and effect of savings provisions in environmental planning instruments is often contentious. In many cases, the question of whether a particular application is “saved” has significant and meaningful consequences. A recent decision of the Land and Environment Court illustrates this point.

In this case, Robson J was asked to determine the meaning of the phrase ‘made, but not yet determined’ as used in a savings provision in the State Environmental Planning Policy (Housing) 2021 (‘Housing SEPP‘).

The Housing SEPP commenced on 26 November 2021, and consolidated five previous SEPPs dealing with similar matters, including the State Environmental Planning Policy (Affordable Rental Housing) 2009 (‘ARH SEPP‘). The general savings provision considered in this case is that in s 2 of Schedule 7A to the Housing SEPP, which provides as follows:

2  General savings provision
(1)  This Policy does not apply to the following matters—
       (a)  a development application made, but not yet determined, on or before the commencement date,
        …
(2)  The provisions of a repealed instrument, as in force immediately before the repeal of the repealed instrument, continue to apply to a matter referred to in subsection (1).

For the purposes of Schedule 7A, the commencement date is prescribed to be 26 November 2021 and the ARH SEPP is a repealed instrument as defined (see s 1 of Schedule 7A and s 10(1) of Chapter 1 of the Housing SEPP).

Robson J held that s 2(1)(a) must be interpreted to mean that a development application is ‘not yet determined‘ until an appeal (if commenced) from the decision of the consent authority in relation to that development application is finally determined.

Background

On 6 April 2021, the Applicant lodged a development application with Penrith City Council seeking development consent relevantly for the construction of a boarding house with basement parking and associated works (‘DA‘).

On 21 July 2021, the Penrith Local Planning Panel (‘Panel‘) determined the DA by way of refusal. On 6 April 2022, the Applicant commenced Class 1 proceedings against the Panel’s decision to refuse the DA.

At the time of lodgement of the DA, and when the Panel determined to refuse the DA, the ARH SEPP was in force and applied to the DA.

However, by the time that the Class 1 Appeal was lodged by the Applicant, the Housing SEPP had come into effect (and repealed the ARH SEPP).

There are material differences between the requirements for boarding houses under the ARH SEPP and the requirements for “Co-living housing” (as the DA would now be characterised) under the Housing SEPP. Accordingly the relevant matters for consideration in determining the DA would be quite different if the Housing SEPP applied to the DA (i.e. if the DA was not saved by the general saving provision in the Housing SEPP).

Issue

The principal issue before the Court was whether the DA was “made, but not yet determined” as at 26 November 2021 when the Housing SEPP took effect.

Robson J held that the DA was saved by the general savings provision.

In His Honour’s view, in the period between when the Class 1 appeal was commenced, until the time of the Court’s final determination of that appeal, the DA was not relevantly “determined” for the purposes of s 2(1)(a) of Schedule 7A to the Housing SEPP.

His Honour stated the following general principles for interpreting the Housing SEPP:

• the proper construction of s 2(1)(a) is one that is consistent with the language and purpose of the relevant instrument when considered as a whole,
• while the legal meaning of a provision will ordinarily reflect its grammatical meaning, in certain limited circumstances the context of the words including the general purpose and policy of the provision, the consequences of construction, the purpose of the statute, or the cannons of construction may require the words of the provision to be read in a different way,
• these general principles apply to the interpretation of environmental planning instruments such as the Housing SEPP,
• while environmental planning instruments should be interpreted in a practical manner, this does not override general principles of statutory construction nor does it require “laxity or flexibility” in interpretation, and
• this approach is also consistent with s 33 of the Interpretation Act 1987 (NSW), which applies to environmental planning instruments (see s 5(6)) and requires a construction which promotes the purpose or object of an Act over one which would not.

By applying the above principles, Robson J then held:

• although the undefined word “determined”, when used in the EPA Act and its associated delegated legislation, generally refers to a decision by a consent authority (such as a local council or planning panel), to approve or refuse a development application, the circumstances of this case required the phrase “but not yet determined” to be given a legal meaning that is different to its ordinary or grammatical meaning,
• because the Court in Class 1 undertakes a merits review, during which the Court metaphorically stands “in the shoes” of the consent authority and determines the DA  anew, in circumstances where a consent authority’s refusal is subject to such an appeal, the DA is not relevantly “determined” until the Court’s final determination of the appeal,
• considering both the text and its context, the word “determined” must be read with the composite words “but not yet”, which causes the phrase to be expressed in the future perfect tense, which is a verb tense that describes actions that will continue up until a point in the future. When read in this way, the wording “but not yet determined” means that the development application has not been finally decided, settled or resolved, and
• the statutory scheme of the Housing SEPP provides that any appeal must be commenced within a fixed time frame, and an interpretation that provides for the general savings provision to preserve an applicant’s position for a fixed time operates harmoniously with the statutory scheme and its purpose.

Having reached the above conclusions, His Honour held that the ARH SEPP would still apply to the DA by reason of s 2(1)(a) of Schedule 7A to the Housing SEPP.

The decision by Robson J can be read in full here: CK Design Pty Ltd v Penrith City Council (No 2) [2022] NSWLEC 97.

If you wish to discuss this article, please do not hesitate to contact Liam Mulligan on 8235 9715.