Posted on May 28, 2020 by Katie Mortimer and Megan Hawley 3

No right of appeal against Council’s rejection of DAs, including for lack of owner’s consent

The Land and Environment Court recently ruled that there is no right of appeal against a council’s decision to reject a development application (DA). This changes the legal position, as an earlier decision of the Court held that there was a right of appeal.

This change has practical implications for councils. It means that DAs can now be rejected, without fear of appeal, if information that is required to accompany a DA is not submitted to the council. This includes owner’s consent, site plans, an SEE and other material. If properly utilised this can save councils significant time and costs, for the reasons we discuss at the end of this post.

Rejection of DAs

Clause 51 of the Environmental Planning and Assessment Regulation 2000 (EPA Reg) gives councils a discretion to reject a DA within 14 days after receiving it, for any of the reasons specified in cl51(1) or (2).

Those reasons include if a DA doesn’t contain the information, or is not accompanied by a document, specified in Part 1 of Schedule 1 of the EPA Reg as needing to be included.

Clause 123H of the EPA Reg allows for an internal review of the decision to reject a DA under s8.3 of the Environmental Planning and Assessment Act 1979 (EPA Act). The application for review must be made within 14 days of receiving written notice of the council’s decision to reject the DA.

Facts of the Case 

The Applicant commenced class 1 proceedings against Lake Macquarie City Council’s rejection of their DA.

The sole basis for Council having rejected the DA was that it was not accompanied by ‘owner’s consent’ in respect of all land to which the DA related. Owner’s consent had been provided for the privately held lands to which the DA related, but not for the public roads to which the DA related (which were owned by Council).

The Council contended that there was no right of appeal from its rejection decision. The Applicant argued that there was a right of appeal and noted that owners consent can be provided at any time before determination, and as Council was the relevant owner, the Court could have given that consent itself pursuant to s39(2) of the Land & Environment Court Act 1979.

Issues before the Court 

Division 8.3 of the EPA Act governs appeals to the Court in respect of development consents.

To decide the issue, Duggan J was required to determine if either section 8.6 or 8.7(1) of the EPA Act provide that there is a right of appeal against a decision to reject a DA. Her Honour found that those sections did not confer a right of appeal against rejection of a DA.

Section 8.6 relevantly provides:

‘(1)  A decision of a consent authority under Part 4 in relation to an application for development consent or a development consent is (if this Division so provides) subject to appeal to the Court under this Division.

(2)  A decision subject to appeal includes a decision made after a review under Division 8.2…’

Duggan J found that for there to be an appeal right pursuant to s8.6, Division 8.3 must separately make provision for the appeal. Section 8.6(2) doesn’t operate to itself create appeal rights from any decision made after a review. Rather it just clarifies the scope of 8.6(1) such that where there is a right of appeal in respect of a decision, that right continues even if the decision has been subject to a review.

Therefore, whilst the EPA Reg provides a right of review of a council’s decision to reject a DA, that does not translate into a right to appeal to the Court as a result of s8.6(2).

Duggan J then considered whether s8.7 of the EPA Act provides a right of appeal against a rejection decision. Section 8.7 relevantly provides:

‘(1)   An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination.’

Duggan J found that s8.7(1) is limited to a determination pursuant to s4.16 of the EPA Act to either approve (conditionally or unconditionally) or refuse consent to a DA, and does not extend to decisions, such as the decision to reject a DA.

Her Honour formed this view as the word determination is used consistently throughout the EPA Act to refer to a determination made pursuant to s4.16, whereas the word decision is used in respect of rejection of a DA, and there is no reference in the EPA Act to the decision to reject a DA  being a ‘determination’. Such a decision was therefore outside of the scope of s8.7(1).

Consequently, there was no right of appeal to the Court, and the appeal was dismissed.

Departure from earlier decision of the Court 

Central to the Applicant’s argument, was the decision of Lloyd J in Parkes v Byron Shire Council (2003) 129 LGERA 156 in which His Honour held that the decision to reject a DA was a decision from which a right of appeal to the Court was available.

Duggan J held that that case did not assist as the statutory context was distinguishable, due to changes to the EPA Reg regarding the circumstances in which DA could be rejected. At the time of the Parkes decision there was no power to reject a DA based on lack of owners consent. A DA could only be rejected if it was illegible or unclear.

However Duggan J went on to conclude that Lloyd J’s decision was wrong, as he did not identify any appeal right flowing from the rejection of a DA, and accordingly she should not follow it.

Implications

This case changes the legal position. If any information required to be included with a DA by Part 1, Schedule 1 of the EPA Reg is not provided, the council can reject the DA. Whilst there remains a right of internal review under s8.3 against that decision, there is now no right of appeal to the Court against the rejection decision.

The applicant will be required to obtain the necessary, missing information, and lodge the DA again.

It is not uncommon for DAs to be lodged without proper owners consent from the owners of all land to which the DA relates.

It remains the case that if the DA is processed and not rejected, the lack of owners consent can be cured at any point prior to determination of the DA – including at any time before judgment in a class 1 appeal to the Court. It also remains the case, as in this case, that if the relevant council is the owner of the land, the Court can provide that consent if the DA is processed and there is a class 1 appeal.

However significant costs can be incurred in class 1 appeals where owners consent has not been provided and is ultimately not provided, and the Court has no power to grant consent.

Councils can now proactively check that proper owners consent has been provided with a DA, and if it is not, reject the DA. This will save councils the time and costs of assessing the DA and the significant costs of defending an appeal while an applicant attempts to secure owners consent.

The decision also on its face gives councils the ability to thwart the Court’s power to grant owners consent on behalf of a council under s39 of the Land and Environment Court Act 1979. If owners consent is required from council, and is not provided, the council can then reject the DA, and there can be no class 1 appeal to the Court to enable the Court to use its power under s39. That is what occurred in this case.

However, Duggan J did note that the question of the Council’s power to reject the DA in the circumstances (where private landowners consent was provided but not the consent of Council as the road owner) was not one she needed to answer (the proceedings being class 1 proceedings, not judicial review proceedings). This leaves open the question of whether a council can properly reject a DA in those circumstances.

However if a council did do so, there would be no class 1 appeal available, and the only recourse would be class 4 proceedings by the Applicant in respect of the rejection decision.

The case can be read in full here: Johnson Property Group Pty Limited v Lake Macquarie City Council (No 2) [2020] NSWLEC 42

If you would like to discuss the issues raised in this post, please contact Katie Mortimer on 8235 9716 or Megan Hawley on 8235 9703.