Owners consent and Part 3A Approvals
Justice Pain of the NSW Land and Environment Court recently considered the requirements for owners consent in respect of applications made under Part 3A of the Environmental Planning and Assessment Act (EPA Act) in the case of Hurstville City Council v Minister for Planning and Infrastructure [2012] NSWLEC 134.
Under clause 8F of the Environmental Planning and Assessment Regulation 2000 (EPA Reg) , owners consent was required for the making of a project application or modification application under Part 3A, except in certain circumstances, which were not relevant in this case.
The Court considered whether a letter from the owner of the land, authorising the making of a development application to the Council, could constitute consent to the making of a project application under Part 3A of the EPA Act.
The Court held that it could not. The Court rejected the argument that landowners could not be expected to understand the various types of approvals under the EPA Act and found that consent to the making of a development application under Part 4 of the EPA Act, was not synonymous to consent to the making of a project application under Part 3A of the EPA Act. Whilst the Court agreed that there is flexibility inherent in Part 3A, it did not agree that such flexibility extended to obviate the need for compliance with the legal requirements in respect of owners consent.
The Court also considered whether a letter evidencing owners consent needed to be provided to the consent authority before its determination, or whether it was sufficient that the letter came into existence before the determination.
The Court held that the letter evidencing owners consent needed to be provided to the consent authority before it made its determination.
The case also dealt with a claim made by the Council that the approval to the concept plan application was invalid, as Council was not afforded procedural fairness in respect of allegations made about bias on the part of a Councillor.
The solicitor representing the proponent of the development had made an allegation to the Planning Assessment Commission (who was determining the application under delegation from the Minister), that there was ‘an agenda to delay our application by a person or persons inside Hurstville Council.’
The Council argued that it was denied procedural fairness as it had not been provided with a copy of these emails prior to the determination of the application, and therefore did not have the opportunity to respond to the allegation.
The Council submitted that it had a right, interest or privilege in making a submission to the PAC and having that submission taken into account as a mandatory consideration. In it’s submission the Council argued that this right, interest or privilege would be adversely affected or prejudiced by information provided by the allegation, as it might discredit Council’s submission.
The Court found that the whilst the Council had a right to make submissions under Part 3A in respect of the proponent’s Environmental Assessment during the public exhibition period, that right was not adversely affected by the failure to provide Council with copies of the emails. This ground of challenge to the concept plan application therefore failed.
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