Posted on May 30, 2019 by Liam Mulligan and Megan Hawley 4

Jurisdictional Prerequisites to Grant of Consent

This update will consider two recent decisions of the Land and Environment Court in which Commissioners, when determining appeals in Class 1 of the Court’s jurisdiction, declined to grant development consent on jurisdictional grounds.

Zhiva Living Dural Pty Ltd v Hornsby Shire Council [2019] NSWLEC 1222

In Zhiva, the Court considered an appeal against refusal of consent to a development application for the construction of a seniors housing development on land at Dural. The development was proposed on land zoned RU2 – Rural Landscape under the Hornsby Local Environmental Plan 2013 and development for the purpose of seniors housing was prohibited in the zone.

Accordingly, the applicant relied on a site compatibility certificate under State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (‘Seniors SEPP‘) to enable the use of the site for the proposed development.

Of relevance for the purpose of this blog, is cl. 55 of the Seniors SEPP, which provides:

A consent authority must not grant consent to carry out development for the purpose of a residential care facility for seniors unless the proposed development includes a fire sprinkler system.

At the hearing, the Court was not taken to any evidence that the application satisfied cl. 55. The Court therefore provided the Applicant with the opportunity to address it specifically on both the application of the clause to the development and whether the requirement of the clause was satisfied.

The Applicant’s response was that, if the Court was minded to grant consent to the application, the requirement in cl. 55 could be addressed by a condition of consent. The Applicant proposed a condition which required the approved plans to be amended to address cl. 55 prior to the issue of a construction certificate and also required the registration of a covenant for the upkeep and maintenance of the fire sprinkler system. The Respondent Council agreed in its submissions that the proposed condition satisfactorily addressed cl. 55.

In rejecting these agreed submissions the Court found (at [38] – [40]):

SEPP Seniors cl 55 requires that a consent authority must not grant consent (emphasis added) to carry out development for the purpose of a residential care facility for seniors unless the proposed development includes a fire sprinkler system.

Satisfaction of cl 55 of SEPP Seniors is a jurisdictional pre-condition to the grant of consent, and it is the satisfaction of that clause, and its provisions, that enlivens the Court’s power to grant consent in this appeal.

The provisions of cl 55 cannot be satisfied by the inclusion of one or more conditions upon the grant of consent, as the Court’s power to grant consent is only enlivened following (emphasis added) their satisfaction, and prior to the grant of consent.

It is important to note from the decision that, even where the parties are in agreement that a jurisdictional matter can be addressed by condition, the Court will still need to be directed to evidence in respect of that matter, so that it satisfy itself that its jurisdiction to grant consent is enlivened.

Jasminco Resources Pty Limited v Goulburn Mulwaree Council [2019] NSWLEC 1218

In Jasminco, the Applicant had made a development application for a basalt quarry on land at Towrang.

Relevantly for these purposes, there was a question as to whether modification works required to a road (Tiyces Lane) as part of the development, would have to be carried out on private land other than the development site which adjoined the road. That land was not part of the development application and owners consent to the lodgment of a development application in respect of that land had not been given.

Clause 49(1) of the Environmental Planning and Assessment Regulation 2000 (‘Regulation‘)provides that

(1)  A development application may be made:

The  lack of consent of the owner of the land adjoining the road brought into question the Court’s jurisdiction to grant consent to the development application.

The issue was complicated by the fact that the plans provided for the works to Tiyces Land were conceptual in nature and did not show specific details of at least 5 points where works were alleged to extend into the adjoining private land.

The Court addressed the issue in two stages:

1. is there sufficient information for the Court to be satisfied as to whether owners consent is required; and
2. if owners consent is required, has it been provided?

In respect of the first issue, the Court found that ‘the limited information provided in these conceptual plans results in uncertainty with regards to what will actually be required to support the proposed development and whether any works could potentially extend onto private lands. This is primarily due to the insufficiency of detail provided in the road design plans that supports this DA under appeal.‘

The Court also found that such insufficiency of information could not be overcome by conditions of consent, as such an approach ‘provides no certainty to the Court that the…proposed development is in compliance with the jurisdictional requirement of cl 49(1) of EPA Reg‘.

As there was insufficient information before the Court for it to determine whether owners consent was required, and that insufficiency could not be cured by conditions of consent, the Court was unable to determine whether owners consent for the private land was required. Accordingly, the Court considered that it was unable to grant consent to the development application.

The decision reaffirms the importance of the observations made by Preston CJ in Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245, where his Honour stated:

The giving of owner’s consent to the making of a development application with respect to the owner’s land for the purpose of cl 49 of the Regulation is an essential prerequisite to, and part of the process of, a consent authority’s determination of the application. That is to say, the giving of owner’s consent is necessary to enable the consent authority to exercise its function to grant development consent to the application if it be minded to do so.

Lessons

Both of these cases are reminders that where a requirement is expressed in legislation or a planning instrument as being a precondition or pre-requisite to the grant of consent, the matter is not something that can be deferred and dealt with through conditions of consent.

Since the Al Maha decision referred to in the Jasminco case Commissioners of the Court have shown an increased focus on ensuring they have the power to grant consent before doing so, including where parties have reached agreement and are seeking to have a matter resolved by consent.

All parties to class 1 appeals should be mindful of any pre-requisites to the power of the Court to grant consent when negotiating agreed outcomes.

If you would like to discuss this case, please leave a comment below or call Liam Mulligan on 8235 9715 or Megan Hawley on (02) 8235 9703.