Posted on October 3, 2017 by Megan Hawley and Katie Mortimer

Intensification of Use, Owners Consent and Staged DAs

Development proposals often involve the intensification of the use of an existing easement. A recent decision of the Land and Environment Court is a reminder that development consent will be required for the intensification of the use of an easement. However, it does not necessarily follow that owners consent to the development application (‘DA‘) is required from the owner of the land burdened by the easement.

In Opera Properties v Northern Beaches Council & anor [2017] NSWLEC 1507 the Applicant had sought development consent for a 62 lot residential subdivision and construction of dwellings. The DA was a staged development application (now known as a concept development application) within the meaning of s83B of the Environmental Planning & Assessment Act 1979 (‘Act’).

The only vehicular access between the development site and the public road network was over an existing right of carriageway (‘ROW‘) across land owned by the Uniting Church.

The Uniting Church argued that its consent to the making of the DA was required under clause 49 of the Environmental Planning Assessment Regulation 2000 because the development proposed involved the intensification of use of the ROW.

The Applicant argued that the DA did not seek consent for an intensification of the ROW, as the intensification of the use would occur in a later stage of the development and would be the subject of a further DA.

The Court found, consistently with previous authority, that the intensification of use of the ROW was ‘development‘ under the Act as it constitutes the use of land.

However the works proposed in the DA would not generate the intensification, given the proposed staging.

The DA which had been made would only, if granted consent, authorise the subdivision of the development site and some subdivision works only. It would not authorise the construction of dwellings and therefore the use of the ROW would not be intensified.

The Court found that the DA did not seek consent for the use of the ROW, and the consent of the Uniting Church to the making of the DA was not required.

Consent of the Uniting Church would of course be required to the subsequent DA which would need to be made to authorise the intensified use of the ROW.

Despite the fact that the DA before the Court did not propose the intensification, the impacts of the intensification needed to be considered and assessed before consent to the DA could be granted.

Read the full judgment here: Opera Properties v Northern Beaches Council & anor [2017] NSWLEC 1507

This blog was prepared with the assistance of Katie Mortimer. Should you wish to discuss the case, please contact Megan Hawley, Partner on 8235 9703 or by email, at