Posted on May 28, 2020 by Megan Hawley and 3

Impacts of Works Related to Development and Deferred Commencement Conditions

In the recent decision of Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (Ballina v Palm Lake), the Land and Environment Court emphasised the importance of properly considering the matters listed in s4.15(1) of the Environmental Planning and Assessment Act 1979 (EPA Act), including the likely impacts of works that are not part of, but inextricably linked to, the development the subject of a development application (DA). The Court also clarified that it is not appropriate to use deferred commencement conditions to delay the consideration of the likely impacts of such works.

The facts

Palm Lake Works Pty Ltd (Palm Lake) sought consent to expand an existing seniors housing development at North Creek Road, Ballina by building 75 new serviced, self-care dwellings, roads, earthworks, stormwater management works, infrastructure works, environmental protection works, and removing vegetation (Proposed Development).

Ballina Shire Council (Council) refused Palm Lake’s DA, and Palm Lake appealed to the Court.

Commissioner Dickson upheld Palm Lake’s appeal at first instance and granted deferred commencement consent to the Proposed Development.

The deferred commencement condition provided:

1. A separate application is to be lodged with Council for all works (civil, road and infrastructure) in the road reserve of North Creek Road, which are to support, and are associated with, the development approved via DA 2018/321. A complete environmental assessment of all works proposed in the North Creek Road reserve is to be prepared and submitted with the application.

…

This deferred commencement consent will lapse if the above condition is not complied with within 5 years from the date of these orders and to the satisfaction of Council.

The Council appealed against the Commissioner’s decision on several grounds.

In its first ground of appeal, the Council contended that the Commissioner failed to properly consider a mandatory relevant matter being ‘the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality’, as required by s4.15(1)(b) of the EPA Act. The ground alleged that the Commissioner did not consider the likely impacts of the road, civil and infrastructure works in the nearby North Creek Road Reserve (North Creek Road Reserve Works), being works which were not part of the DA before the Court, but which were necessary as they would provide access to and service the Proposed Development. The North Creek Road Reserve Works were the works the subject of the deferred commencement condition.

Although the Commissioner found that the North Creek Road Reserve Works were inextricably involved in the Proposed Development, she did not consider the likely impacts of the North Creek Road Reserve Works. The Commissioner gave 4 reasons for not considering the likely impacts of the North Creek Road Reserve Works, including that:

1. the North Creek Road Reserve Works were feasible and certain, and would be constructed within the road reserve;
2. the North Creek Road Reserve Works did not form part of the development for which consent was sought;
3. the case before her could be distinguished from the facts of Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349 (Hoxton Park), and aligned with the facts of Australian Coal Alliance Inc v Wyong Coal Pty Ltd [2019] NSWLEC 31 (ACA); and
4. the deferred commencement condition was appropriate in the circumstances of the case.

The Court’s consideration

The Court upheld the Council’s first ground of appeal. The Court found that the Commissioner failed to take into consideration the mandatory relevant matter under s4.15(1)(b) of the EPA Act because she did not have an understanding of the likely impacts of the North Creek Road Reserve Works or undertake an evaluation of the likely impacts of those works, and instead erroneously deferred for later consideration the environmental assessment of those works by imposing the deferred commencement condition.

Rather than doing what was required by s4.15(1)(b), the Commissioner gave the 4 reasons set out above for not considering the North Creek Road Reserve Works, and the Court said the Commissioner’s four reasons ‘each reveal[ed] error’. In particular, the first reason demonstrated that the Commissioner considered the works to be inextricably linked to the Proposed Development, which rather than being a reason not to consider their impacts, should have triggered that consideration.

The Court made the following observations.

Likely impacts of development 

Regarding the interpretation of the phrase ‘the likely impacts of that development’ and the scope of that inquiry, the Court stated, at [6], that the phrase:

… embraces not only site specific impacts, being impacts of the proposed development on the development site, but also off-site impacts. Off-site impacts can be caused not only by the proposed development impacting adjoining or other land in an area of influence but also by some other development provided that the impacts of that other development have “a real and sufficient link” with the proposed development, such as where the impacts are caused by “some further undertaking that is ‘inextricably involved’ with the proposed development”  (our emphasis).

Further, the Court stated that ‘the critical factor is that there is a connection between the likely impact and the proposed development (see: [7]), and ‘increasing remoteness in the chain of likely consequences will decrease the significance of an impact’ (see: [8]).

Regarding the Commissioner’s reliance on the Hoxton Park And ACA cases, the Court stated, at [24], that:

The task for the Commissioner was to determine whether the likely impacts of the [North Creek Road Reserve Works]… were likely impacts of the the proposed development. That factual question was not to be answered by reference to the factual findings in the two decisions cited. Answering that factual question required an evaluative judgment having regard to the degree of connection between the works and their impacts on the proposed development (our emphasis).

Further, the Court stated that ‘The Commissioner was required to make an evaluative judgment as to whether the likely impacts of the [North Creek Road Reserve Works] were likely impacts of the proposed development, and if so, to take those impacts into consideration in determining the development application for the proposed development’ (see: [30]).

Deferred commencement conditions 

In the present case, the Commissioner found an inextricable link between the North Creek Road Reserve Works and the Proposed Development, and therefore imposed a deferred commencement condition of consent pursuant to s4.16(3) of the EPA Act, requiring an application for and grant of approval for the North Creek Road Reserve Works before the consent for the Proposed Development would operate. The imposition of that deferred commencement condition meant that the Proposed Development could not be carried out without the prior approval of the North Creek Road Reserve Works.

The Court held that this reason involved ‘misdirection’. In this regard, the Court stated that ‘The Commissioner appears to have thought that requiring, by the deferred commencement condition of consent, such later environmental assessment of the [North Creek Road Reserve Works], justified her not taking into consideration the likely impacts of the works in determining to grant consent to the application’ (see: [36]).

Significantly, at [37], the Court stated that:

The power in s4.16(3) of the EPA Act to grant consent to a development application subject to a deferred commencement condition does not relieve a consent authority from the obligation to take into consideration all matters of relevance to the development the subject of the development application under s4.15(1) of the EPA Act.

Implications of the decision 

The Court’s decision in Ballina v Palm Lake does not create new law, but is a reminder of the need to consider the likely impacts of works which are not the subject of a DA if those works are inextricably linked to the development the subject of the DA, particularly if the works are required by conditions or the development cannot proceed without them.

It is also a reminder that the imposition of a deferred commencement condition cannot be relied on to defer the proper assessment of a DA under s4.15 of the EPA Act, even if the condition requires that assessment to be carried out before the development can proceed.

The decision in Ballina v Palm Lake can be read here. The decision covers other aspects of the s4.15 assessment process, such as the need for the consent authority to form opinions required by environmental planning instruments as a precondition to the granting of consent. It also considers the proper characterisation of a road servicing the Proposed Development, which is the subject of a further blog.

See our earlier blogs on the decision in the Hoxton Park case here and here.

To discuss this blog, please contact Megan Hawley, Partner on 02 8235 9703 or Sophia Urlich, Lawyer on 02 8235 9708.