Posted on May 9, 2019 by Anna Sinclair and Carlo Zoppo

Multiple development consents for the same site – what conditions apply?

The Land and Environment Court’s decision in Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 2) [2018] NSWLEC 195 is a useful reminder of the key principles that apply where multiple development consents operate on the same site.

Background

Leda was charged with three offences under the Environmental Planning and Assessment Act 1997 (EPA Act) for carrying out bulk earthworks in contravention of conditions of a project approval (Project Approval) granted under the then Pt 3A of the EPA Act for its major residential development in the Tweed Shire area (Project). The conditions limited the amount or nature of earthworks that could be carried out at the site, and the location that they could be carried out.

Numerous historic and existing development consents (Prior Consents) had also been granted to Leda, which permitted earthworks across the site. A development consent and construction certificates (CC) permitting bulk earthworks had also been issued after the grant of the Project Approval.

In summary, Leda’s defence was that:

  • the bulk earthworks the subject of the three changes was attributable to bulk earthworks carried out under the Prior Consents, and the development consent and CC’s granted after the Project Approval,
  • the concept approval for the project specifically preserved the Prior Consents, which meant that the bulk earthworks permitted under those consents were necessarily excluded from the limit imposed under the Project Approval, and the Project Approval could not impose limits on the Prior Consents, and
  • earthworks were permitted by a development consent issued after the concept approval and the Project Approval, which was independent and mutually exclusive of the Project Approval, and not constrained by it.

Planning principles that apply

Justice Pepper found that Leda’s defence ignored a “fundamental tenet of planning law”, namely that if a person obtains a planning approval that approval does not have to be acted upon, and if it is not acted upon, conditions attached to that approval are not operative. However, if a person acts upon the consent by carrying out the development the subject of the approval, the person must comply with the approval and any conditions which it is subject.

Further principles of planning law then flow from this, including that:

  • where multiple consents apply to the same parcel of land, all of the consents may operate unless the implementation of one consent is no longer a practical possibility due to development already having been undertaken pursuant to another consent,
  • the granting of a further consent does not operate to revoke prior consents which are in effect, and a later consent does not, of itself, take precedence over an earlier approval (unless a statute otherwise provides), and
  • the non-compliance with a condition of an earlier development consent, where that condition has an ongoing effect (i.e. including beyond the life of the existing development consent) constitutes a breach of the EPA Act.

Application to the project

Applying these principles, Justice Pepper stated that if a person was carrying out development pursuant to a Pt 3A approval (which is now “State significant development” under Div 4.6 of the EPA Act) it must comply with the conditions of that approval, and that obligation is not displaced by the existence of another development consent granted for the same parcel of land.

Although the Prior Consents were preserved by the Concept Approval and the Project Approval, this did not relieve Leda from its obligation from complying with the conditions of the Project Approval. Rather, it preserved the operation of the Prior Consents, and any obligation that they imposed in respect of the works carried out under them. Leda still had to comply with the conditions of the Project Approval even though the bulk earthworks were carried out in the same areas where earthworks were permitted under the Prior Consents.

Her Honour found that the Secretary established beyond a reasonable doubt that the bulk earthworks were undertaken in furtherance of the Project Approval, and those earthworks were required to comply with the conditions of the Project Approval. Leda was convicted of the three offences.

Conclusion

If multiple consents apply to one site, the conditions of each consent will apply if development has been carried out pursuant to the consent.

A person cannot fail to comply or ignore a condition of a consent on the basis that the works are permitted under another consent that applies to the same site.

Developers and local councils should be mindful of  all development consents that apply to a site especially where a further development application has been lodged.  Conditions of any future consent should be imposed considering the effect of existing consents.  In some cases it may be appropriate to seek the surrender of earlier consents especially where the two consents cannot work together.

The decision can be read here.

If you would like to discuss further, please contact Carlo Zoppo  on 02 8235 9705 or Anna Sinclair on 02 8235 9713.