Posted on June 9, 2021 by Katie Mortimer and Stuart Simington
Councils cannot unknowingly give owner’s consent when granting development consent
Landowner’s consent is required for the making of a development application. It must be provided by the time a consent authority determines whether to grant development consent.
It is also a recognised principle that when a consent authority grants development consent to a DA relating to its own land, the consent authority is doing two things:
- consenting as the owner of the land to the making of the DA, and
- granting development consent to the DA.
The grant of owner’s consent is implicit in the grant of development consent: Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724 and Sydney City Council v Ipoh Pty Ltd  NSWCA 300. The reason behind this is that the grant of owner’s consent is an essential prerequisite that enables the consent authority to exercise its function to grant consent.
However, the Land and Environment Court recently considered the position where a consent authority is not aware that a DA relates to public land.
A Garage is Built on Public Land
The Court was asked to consider the following facts.
A landowner had lodged a DA seeking to construct a garage and carry out house alterations in Seaforth. Northern Beaches Council granted development consent to the DA.
At the time development consent was granted, both the Council and landowner were unaware but the proposed garage was located entirely on land owned by the Council. That land formed part of a road reserve.
Adjoining neighbours challenged the development consent on 4 grounds — one being that the Council did not provide owner’s consent to the making of the DA.
Owner’s Consent not Implicitly Given
The plans accompanying the DA did not contain accurate locations or dimensions of the site boundaries. As a result the Council only understood the DA to seek consent for development on private land.
The neighbours consequently distinguished the principle in Claude Neon discussed above, that owner’s consent was implicitly granted to the DA. They contended that there could not have been any implicit consent, as the Council was unaware that it was consenting to development on a road reserve.
The Court agreed. Pain J stated that it is fundamental to the exercise of a statutory power, that a consent authority understand it is exercising a function.
As the Council was unaware the garage was proposed on a public road, it did not consider whether a permanent structure should be built on a public road, being land reserved under the Roads Act 1993. It would ordinarily have done as the owner and manager of such public land.
Pain J declined to order demolition of the garage having regard to a range of considerations. The neighbours had delayed the proceedings in so far as the structure had already been built by the time the proceedings were completed. Also, the Court accepted that the structure was built on the Council’s land unintentionally. Also, the Court was satisfied that measures to ameliorate privacy impacts on the neighbours could be undertaken.
These facts serve as a reminder of the importance that DAs comply with clause 50(1)(c) of the Environmental Planning and Assessment Regulation 2000, and be accompanied by all required information and documents.
If an accurate site plan had been submitted, the litigation in this case likely would have been avoided.
The decision also highlights the importance of consent authorities’ understanding the land to which a DA relates. If a DA relates to public land, it is critical for a consent authority to recognise this, and give proper considerations to the exercise of its statutory powers.
You can read the judgment in full here: Lu v Walding (No 2)  NSWLEC 21
If you’d like to discuss the issues raised in this post, please contact Katie Mortimer on 8235 9716 or Stuart Simington on 8235 9704.