Posted on May 29, 2025 by Megan Hawley 2

Crown Development Applications

The Department of Planning, Housing, and Infrastructure has released an updated planning circular in respect of Crown development applications (Crown DAs).

The circular provides information about, and generally reflects the provisions of the Environmental Planning & Assessment Act 1979 (EPA Act) and Environmental Planning & Assessment Regulation 2021 (EPA Reg) in respect of Crown DAs.

What is a Crown DA?

The circular released this week discusses the restrictions in the EPA Act on a consent authority refusing consent to a Crown DA, or imposing conditions on a consent granted to a Crown DA. It does not, however, explain what a Crown DA is.

A ‘Crown development application’ is defined in the EPA Act as a development application made by or on behalf of the Crown.

For the purposes of the Crown DA provisions in the EPA Act, the Crown includes persons prescribed by the EPA Reg being:

• a public authority other than a council;
• an Australian University;
• a TAFE establishment; and
• a Crown cemetery operator

This is a much broader meaning of the Crown than generally applies, which is ‘the Crown in right of New South Wales’ (which is the definition of the Crown for the purposes of any Act or instrument pursuant to the Interpretation Act 1974).

In addition, because a development application can be a Crown DA if made ‘by or on behalf of’ the Crown, it can cover development applications made by other people, if made on behalf of the Crown. There is a developing body of caselaw regarding what ‘on behalf of’ means, given that this is a phrase also used in various facultative provisions of State environmental planning policies, such as the State Environmental Planning Policy (Transport and Infrastructure) 2021 and the State Environmental Planning Policy (Housing) 2021. It covers more than applications made by someone as agent for the Crown: Burwood Area Community Housing Limited v Sutherland Shire Council [2006] NSWLEC 313.

Restrictions on Determinations of Crown DAs

As set out in the circular, the Crown DA provisions have the effect that a consent authority (other than the Minister administering the EPA Act) (Planning Minister) cannot:

• refuse development consent to a Crown DA, except with the approval of the Planning Minister; or
• impose a condition on a development consent granted to a Crown DA, except with the approval of the applicant for consent, or the Planning Minister.

This significantly constraints a consent authority in the manner in which it can determine a Crown DA.

The Planning Minister has the power to direct a consent authority as to how to determine a Crown DA. If the Planning Minister directs a consent authority to determine a Crown DA in a particular manner, the consent authority must do so,  and failure to do so results in the DA having been determined in accordance with the direction.

In practice, these provisions operate through the referral process set out in the EPA Act.

Referral Process

The circular sets out the referral process.

A consent authority, being a council, can refer a Crown DA to the relevant Sydney district or regional panel (Panel) at any time. A council would generally only do this if it was not proposing to grant consent, or was proposing conditions of consent with which the applicant did not agree.

Similarly the Panel can refer a Crown DA (either which has been referred to it or for which the Panel is the consent authority) to the Planning Minister at any time.

The applicant for a Crown DA also has the ability to refer Crown DAs to the Panel or the Planning Minister if not determined in a specified time (subject to stop the clock provisions in the EPA Reg). The timeframes are set out in the EPA Reg, and the circular and are:

• 70 days for referral to the Panel (if a council is the consent authority);
• 70 days for referral to the Planning Minister (if the Panel is the consent authority); or
• 50 days for referral to the Planning Minister where the Crown DA has first been referred to the Panel, and the Panel has failed to determine the DA.

Other provisions re Crown DAs

The EPA Act also contains other specific provisions regarding Crown DAs as referred to in the circular.

Crown building work and Part 6 certificates

There are specific provisions in the EPA Act regarding Crown building work being work that does not require development consent (possibly as a result of one of the SEPPs referred to above), and which is authorised as a result of an environmental assessment under Division 5.1 of the EPA Act. Provisions in Part 6 of the EPA Act regarding certification do not apply or apply differently to Crown building work or work carried out by or on behalf of the Crown (adopting the broad definition referred to above).

Generally, a person acting for the Crown can provide certification that Crown building work or subdivisions proposed by the Crown can proceed. Building work needs to comply with the Building Code of Australia.

Implications 

Entities covered by the broad definition of Crown in the EPA Reg, should be aware of the beneficial provisions of the EPA Act that apply to their DAs and building work they carry out.

Whilst consent authorities and councils in particular should also be conscious of the fact that they are constrained in the manner in which they can determine DAs lodged by public authorities, and other entities taken to be the Crown for the purposes of the Crown DA provisions, this does not mean the assessment of such DAs should not be thorough.

Even if a consent authority is of the view that consent to a Crown DA should be refused (resulting in a referral), the consent authority is required to provide its reasons for its proposed determination and relevant reports to the Panel or Minister, and so retains significant input into the assessment of the DA.

The circular can be found here.

To discuss this post, please leave a comment or contact Megan Hawley on 8235 9703.