Posted on March 2, 2012 by Frances Tse 1

Landowner’s consent given once and for all

The Land and Environment Court in Rothwell Boys Pty Ltd v Coffs Harbour Council [2012] NSWLEC 19 has recently confirmed that once landowner’s consent is given to a development application, no further consent is required even if the development application is amended prior to determination.

The requirement for landowner’s consent arises in clause 49(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), which provides that a development application may be made by the owner of the land to which the development application relates, or by any other person with the consent in writing of the owner of that land.

It is clear that landowner’s consent is required for the making of a development application (where the applicant is not the landowner). The question then arises as to what happens afterwards. For example, what happens if:

• like in Rothwell Boys, the development application is amended before it is determined?
• the landowner withdraws his or her consent before the development application is determined?
• the land is sold before the the development application is determined?
• the applicant wants the Council to review its determination under s82A of the Environmental Planning and Assessment Act 1979 (EPA Act) or wants to lodge an appeal against the determination in the Land and Environment Court?

In these cases, does the applicant need to obtain further consent from the landowner before Council can determine the development application or review its determination?

The answer is no.

There is a consistent line of authority in the Land and Environment Court to the effect that (see also Rose Bay Afloat Pty Ltd v Woollahra Municipal Council 126 LGERA 36):

• landowner’s consent is only required for the making of a development application (and the making of an application to modify a development consent) where that requirement is expressly set out in the EPA Act or EPA Reg,
• where landowner’s consent is given to a development application, “it is to be taken as intending the full development assessment process or course contained in the EP&A Act, Part 4 and Part 6 of the Regulation, to apply to that development application” (see paragraph 89 of Rose Bay Afloat),
• therefore unless expressly stated, no additional consent is required to amend the development application or to apply for a review of a determination or appeal against a determination.

It follows that as landowner’s consent is only required at the time a development application is made, once that happens, there is no opportunity for revocation or withdrawal of the consent.

Even if the land is sold, there is no requirement for the new owners to provide consent to the development application already made.

However, as clearly stated in paragraph 37 of Rothwell Boys, notwithstanding the fact that development consent may be granted to a development application, this does not constitute a right to access the land to carry out the development.

Therefore, if the landowner does not agree with the development consented to, the landowner may refuse access to his or her land. However, this is not a relevant issue to be considered by the Council or the Courts when determining a development application.