Posted on February 2, 2024 by Bianca Crapis and Sue Puckeridge 4

The need for owner’s consent where a public authority is developing Crown land

It is well established that before a consent authority has the power to grant development consent, the owner of the land on which the development is to take place must give consent to the lodgment of the development application. If the consent authority did not have the power to grant development consent, the consent is liable to be declared invalid by the Land and Environment Court.

The regulations under the Environmental Planning and Assessment Act 1979 provide an exception to this precondition for development applications made by public authorities, provided certain actions are undertaken.  This exception used to exist in cl 49 of the Environmental Planning and Assessment Regulation 2000 (2000 Reg) and can now be found in s23 of the Environmental Planning and Assessment Regulation 2021 (2021 Reg).

Whether the exception applies in the context of development proposed by a public authority on dedicated or reserved Crown Land subject to the Crown Land Management Act 2016 (CLM Act) has recently been considered by the Land and Environment Court (Court).

Background

In Save Bungendore Park Inc v Minister for Education and Early Learning [2023] NSWLEC 140, the Minister for Planning had granted development consent to State significant development (being the construction and operation of a new high school in Bungendore) (Consent). The applicant claimed the Consent was invalid because the development was to be carried out on Crown land dedicated for the purpose of public recreation.  The consent of a Minister administering the CLM Act, namely the Minister for Lands and Water, had not been obtained to the lodgment of the application for development consent at the time the Consent was granted.

Clause 49(2) of the 2000 Reg (now s23(2) – (4) of the 2021 Reg) relevantly provided:

(2) The consent of the owner of the land is not required for a development application made by a public authority, or for a development application for public notification development, if the applicant instead gives notice of the application—

(a) to the owner of the land before the application is made, or

(b) by publishing a notice no later than 14 days after the application is made—

(i) in a newspaper circulating in the area in which the development is to be carried out, and

(ii) in the case of an application made by a public authority, on the public authority’s website, or, in the case of public notification development, on the NSW planning portal.

Section 2.23 of the CLM Act provides that the Minister is taken to have given consent to the lodgment of a development application in certain circumstances set out in s2.23(2).  None of which applied in the present instance.  The section relevantly provides:

(1) This section—

(a) applies in relation to dedicated or reserved Crown land for the purposes of the Environmental Planning and Assessment Act 1979 (and any instrument made under that Act), and

(b) has effect despite anything in that Act (or any instrument made under that Act).

….

(5)  To avoid doubt, the Minister’s consent on behalf of the Crown (as the owner of dedicated or reserved Crown land) to lodgment of a development application in respect of that land is required for the carrying out of any development to which subsection (2) does not apply.

It was agreed that the Minister for Education and Early Learning (the applicant) was a public authority that had complied with the requirements of cl 49(2) of the 2000 Reg.

The need for owner’s consent

The Court found that the effect of s2.23(5) of the CLM Act is to require the consent of the Minister for Lands and Water to the lodgment of the SSD development application despite cl 49 of the 2000 Reg.  The Minister’s consent as the landowner was an essential prerequisite to the grant of the Consent: ‘[Section] 2.23(1) and (5) of the CLM Act and not cl 49 of the 2000 EPA Regulation was the “critical provision.”‘ (at [103(2)])

Additionally:

‘As a matter of statutory construction, …a general regulation authorised to be made under the EPA Act, not requiring the consent of the owner of land for a development application made by a public authority, cannot have the drastic effect of impliedly repealing the specific provisions in s 2.23(1) and (5) of the CLM Act in relation to dedicated or reserved Crown land.’ (at [103(4)])

Given the limited purposes specified in the CLM Act for dedicated and reserved land and the general limitations of dealing with Crown land, the Court was not satisfied that s2.23(5) could be declaratory of cl 49(2)(b) of the 2000 Reg.  In the Court’s opinion, the ”doubt” ‘to be dispelled by s 2.23(5) is to make clear that s 2.23 of the CLM Act prevails over cl 49 of the 2000 EPA Regulation in relation to certain development applications over reserved or dedicated Crown land’ (at [103(10)]).

The Minister for Planning therefore did not have the power to grant the Consent and it was declared to be invalid.

The Court’s power to specify terms compliance with which would validate the Consent.

Section s25B of the Land and Environment Court Act 1979 (LEC Act) gives the Court the power to suspend the operation of a development consent in whole or part and specify terms compliance with which will validate the consent.

The Court takes the view that the general intention of s25B is to cure technical breaches.  The section is not available where there is a complete absence of power to grant development consent: see Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43 at [41] and Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38 at [21] (Hodgson JA).

Given that the absence of owner’s consent is jurisdictional and fundamental to the grant of the Consent, it could not be cured by an order under s25B.

Implications 

The case is a useful reminder of the need for public authorities to ensure that their acts are consistent with their governing legislation regardless of any exceptions or concessions that may exist in other statutory instruments.  It again demonstrates that s25B of the LEC Act is not a ‘cure all’ if a consent is found to be invalid. That section’s operation is constrained and cannot be used to overcome invalidity arising from a lack of power to grant development consent.

You can read the judgment in full here: Save Bungendore Park Inc v Minister for Education and Early Learning

If you have any questions about this post, please leave a comment below or contact Sue Puckeridge on 02 8235 9702 or Bianca Crapis on 02 8235 9728.