Posted on September 17, 2024 by Stuart Simington 3

Failure to give proper regard to the standard instrument flood clause 5.21 leads to invalidity of consent

Section 5.21 of the Standard Instrument LEP requires the consent authority to be satisfied as to certain specific matters relating to flood function, behaviour, safety, evacuation and impacts on the environment.  In a recent case, the Land and Environment Court held that a consent was granted unlawfully because this occurred without the delegate officer forming the relevant state of satisfaction required by the clause.

5.21 (2)  Development consent must not be granted to development on land the consent authority considers to be within the flood planning area unless the consent authority is satisfied the development—

It was alleged that:

• There was no record of the assessing officer’s proper consideration or assessment of flood matters either at all or in sufficient detail to inform in relation to the relevant considerations required by cl 5.21 of the LEP.
• Even if officer had knowledge, constructive or otherwise, of the material in the council’s records in relation to flooding, there was no probative evidence of his positive state of positive satisfaction as required by s5.21(2).

The Court agreed.

There was insufficient evidence to draw the inference that Council (through its delegate) formed the positive state of satisfaction required by cl 5.21 of the WLEP.

In particular, there was no evidence of any reference to cl5.21 in assessment documents. The fact that conditions were imposed as to floor levels above the 1/%AEP flood level did not sufficiently engage with the questions posed by cl5.21.

There was also no “advice” from Council’s Development Engineer that specifically mentioned cl 5.21 at all, or in substance.

Even the substantive information on flooding in the objector submissions had been considered, this was incapable of showing that the officer reached the positive state of satisfaction required. The “information in the submissions cannot substitute for the positive engagement of cl 5.21 of the WLEP“.

Robson J held:

“While [the council officer] expressed the view that “the lot is subject to flooding” and “that there had been numerous objections … in regard to stormwater” and provided the “Flood Map” in his email of 30 November 2022 to Council’s engineers, … and request[ed] the engineers to “have a look at the file and provide response”, it does not follow that [the officer] had regard to the context of the submissions raised by the objectors and therefore cl 5.21 when granting the Consent …

I find that even taking into account the detail in the objectors’ submissions, including the material noted …above, the statement of environmental effects and the suggested conditions of consent (provided by Council’s Development Engineer) at their highest, it was not reasonably open for Mr Lindsay to assess the issues in relation to the likely impacts of the development from flooding in the context of cl 5.21. …

As a final matter, the Court also gave consideration to whether a recent decision of the Court of Appeal could save the consent. We wrote about this earlier somewhat troublesome case here: El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78. Leeming JA had stated that “the content of the [local environmental plan] cannot determine whether a power conferred by statute is subject to precondition which is a jurisdictional fact”.

In this case, the Council contended that it followed from Gemaveld that s 4.15 of the EPA Act simply requires the LEP to be taken into consideration but does not require the satisfaction set out in cl 5.21(2).  If so, it followed that the Applicant needed to show an absolute failure to take into account cl 5.21 not merely that the requite state of satisfaction had not been reached on all matters.

Strangely, Robson J did not engage directly with the argument;  but rejected it simply holding that “I consider that this cannot be the case such that cl 5.21 should not be read in isolation nor can there only be consideration of, and not satisfaction of, the matters in cl 5.21 as this would fundamentally undermine the objectives of the provision…. Although I have made findings which are sufficient to determine this matter, I do not rely upon the [council’s] submission as I do not consider that the words of Leeming JA in Gemaveld were meant to overturn what I understand to be previous persuasive authority.”   Ordinarily, one would have expected an explanation as to why Leeming JA’s judgment did not mean what it appears to say and therefore binding.  Unfortunately, the decision leaves practitioners in continued doubt about the current state of the law in this area.

Key takeaways

Putting the question posed by Gemaveld to one side (as Robson J did in this case), this case takes the traditional approach to the effect of provisions in environmental planning instruments. A consent authority must identify each jurisdictional precondition to the granting of a consent in each applicable environmental planning instrument before granting consent.

Where a matter must be ‘considered’ under the instrument, it must be given proper consideration.

Where it requires that a state of satisfaction be reached in relation to the matter, a failure to do so also renders the consent being liable to be declared invalid.

Mere advertance to general submissions on a topic will be insufficient where the questions posed by the instrument require a specific positive finding of satisfaction on a matter.

You can read the decision in Nicholas Tang Holdings Pty Limited v Berbic and Wingecarribee Shire Council [2024] NSWLEC 95 here.

If you have any questions in relation to this post, please leave a comment below or contact Stuart Simington on 8235 9704.