Posted on September 2, 2022 by Alex Rutherford and Stuart Simington
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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) [2022] NSWLEC 94
If you would like to discuss this blog post, please contact Stuart Simington or Alex Rutherford.
A similar clause operates in many LEPs across the state. When Clause 1.8A says “this plan” is it referring to the plan as originally made (and before any subsequent amendments), or is it always referring to the plan as most recently amended? In other words, is it a rolling savings provision that picks up DAs lodged before subsequent amendments are made, or do each of those amendments need their own savings provision?
Hi Steven,
The wording of the model clause 1.8A has been held by the Court to refer to the Plan as originally made, meaning that development applications must be determined in accordance with the amendment of the LEP which is in force at the date of determination (see Wingecarribee Shire Council v De Angelis [2016] NSWCA 189).
However, some councils have amended clause 1.8A by inserting a further specific savings provision that specifies a specific amendment of the LEP, and which is updated each time the Plan is amended (see for example cl 1.8A(3) of the Tweed Local Environmental Plan 2014). These provisions are intended to have the effect of ‘saving’ development applications from any amendments made to the LEP after the lodgement of the DA.
Regards,
Alex
Interesting, thank you. I have had many applications sitting in the portal for 14+ days until council sends an invoice for payment of fees and acceptance of the application. Any advice on how long councils can leave these pending applications waiting?
Hi,
Under section 256 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021), a consent authority is required to determine the fees for a development application within 14 days of the application being submitted on the NSW planning portal.
However, the EPA Regulation 2021 does not provide a process to be followed where the consent authority fails to determine the fees within that timeframe.
In circumstances where the fees have not been determined within 14 days, we suggest following up with both the council and the Planning Portal regarding the status of the application.
Ultimately, if a council continues to fail to comply with its duty under section 256 of the EPA Regulation 2021, then the only recourse may be to seek orders from the Land and Environment Court, in Class 4 of its jurisdiction, that the council carry out that duty.
Regards,
Alex