Posted on September 2, 2022 by Alex Rutherford and Stuart Simington
Saving DAs – When is a development application ‘made’?
Many council’s local environmental plans (LEPs) include the model local clause 1.8A , which provides:
1.8A Savings provision relating to development applications [local]
If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had been exhibited but had not commenced.
Justice Pain of the Land and Environment Court recently considered whether, for the purposes of clause 1.8A of the Georges River Local Environmental Plan 2021 (GRLEP), a development application had been ‘made’ prior to the commencement of the GRLEP.
The applicant submitted its development application to the NSW Planning Portal on 30 September 2021.
On 8 October 2021 the GRLEP commenced, replacing the Hurstville Local Environmental Plan 2012 that previously applied to the subject site.
On the same day that the GRLEP commenced, the development application fee was paid by the applicant.
The applicant argued that the ‘making’ of a DA is separate to the ‘lodgment’ of a DA, and that the applicant’s development application was ‘made’ when it was submitted on the planning portal, as opposed to when it was ‘lodged’ upon the payment of the appropriate fees.
The Council instead argued that the term “made” should be properly construed in terms of the requirements under the EPA Act and EPA Regulation 2000, and that lodgment on the NSW planning portal, inclusive of the payment of the relevant fee, is a pre-requisite to a DA being made.
Her Honour agreed with the Council, finding that a DA is made for the purposes of cl 1.8A of the GRLEP when there is “substantial compliance” with each of the requirements of the EPA Act and EPA Regulation 2000 including payment of the fee and noting that the EPA Regulation 2000 does not explicitly prescribe when a DA is made. Her Honour held that the lodgment process under cl 50 of the EPA Regulation 2000 is not indicative of a separate process to the making of a DA, but is instead an essential part of that process to enable its determination.
Environmental Planning and Assessment Regulation 2021
As the DA was lodged but not finally determined prior to the commencement of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021), the Court was not required to consider whether the outcome would be the same under the same under the 2021 Regulation, which applies to all development applications submitted from 1 March 2022.
Similar to the EPA Regulation 2000, the EPA Regulation 2021 does not make any explicit statement of when a DA is ‘made’.
Under s 24 of the EPA Regulation 2021, a development application is lodged on the day that the fees payable for the development application under the Regulation are paid, or when the application is submitted on the NSW planning portal where no fee is payable. As this mirrors cl 50 of the EPA Regulation 2000, we consider that a similar outcome would most likely be reached in respect of the EPA Regulation 2021, in that a development application will be considered to have been ‘made’ for the purposes of the model local clause 1.8A once the applicant has complied with the requirements of the EPA Act and the EPA Regulation 2021, including by paying any applicable fees.
The decision of Pain J can be read in full here: Commitment Pty Ltd v Georges River Council; (No 2)  NSWLEC 94
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