Posted on April 16, 2015 by
What are the limits of the ‘submission period’ under the EPA Act?
In a recent case, the Land and Environment Court has explored the parameters of the period within which objectors to an application for designated development must provide a written submission to ensure they have a right of appeal under the Environmental Planning and Assessment Act 1979 (EPA Act).
In Woolcott Group Pty Ltd v Rostry Pty Ltd  NSWLEC 46, the Applicant (an objector claiming a right of appeal pursuant to s98(1) of the EPA Act) appealed to the Land and Environment Court against the decision of Tamworth Regional Council to grant consent for the construction of five poultry farms. The poultry farms were designated development.
The Respondent (the applicant for the development consent) sought summary dismissal of the appeals on the grounds that the Applicant was not an objector. In order to prove that it had a right of appeal, the Applicant had to prove that it was an objector.
Section 79 of the EPA Act provides the public participation requirements for designated development. Section 79(1) defines the ‘submission period’. The consent authority must:
place the application and any accompanying information on public exhibition for a period of not less than 30 days (the submission period) commencing on the day after which notice of the application is first published as referred to in paragraph (d)…
Section 79(5) provides:
During the submission period, any person may make written submissions to the consent authority with respect to the development application. A submission by way of objection must set out the grounds of the objection.
Under s98(1), a person who makes a submission has a right of appeal against the consent authority.
Facts relating to the Applicant’s submission
The development application and accompanying information were exhibited from 20 January 2014 to 3 March 2014, being 42 days.
Importantly, all 17 adjoining landowners except one were notified. This outstanding landowner, Mr Fernance, was not notified until 31 January 2014. Mr Fernance was informed that the closing date for lodging a submission was extended until 14 March 2014. Importantly, however, the development application and accompanying information were taken off public exhibition on 3 March 2014.
The Applicant prepared a submission on 28 February 2014, and posted it by way of prepaid express post that evening. The letter reached Council’s PO Box by 3 March 2014. Tamworth Post Shop records suggested that the envelope was delivered on 3 March 2014, but was returned on 7 March 2014 as it had not reached the intended recipient. Accordingly, the letter was not stamped as ‘received’ by Council until 12 March 2014, nine days after the submission period had ended.
Was the submission made during the submission period?
The Applicant submitted that because the submission period had been extended for Mr Fernance, it had also been extended for the Applicant. The Applicant argued, by reference to s79(1)(a), there can only be one submission period, and the power to extend the submission period cannot be exercised differentially, only universally.
The Court accepted that Council has the power to extend the submission period universally; however, it found that the decision to extend the submission period for Mr Fernance was legally ineffective for two reasons (at -):
First, in extending the period for Mr Fernance to make a submission but not extending the period of public exhibition, the Council was acting outside power by having two submission periods: one from 20 January 2014 – 3 March 2014 (for the purpose of public exhibition and making a submission), and a second from 20 January 2014 – 14 March 2014 (for the purpose of making a submission only). This was contrary to s79(5) which refers on to one submission period.
Moreover, the Court found that the Council had no power to fix one submission period for Mr Fernance and a different submission period to the rest of the public under s79(5). The Court declined to make the inference that the Council’s letter to Mr Fernance extending the period in which to make a submission, acted as a universal extension for all persons.
Nevertheless, the Court found that the Applicant’s submission was received by the Council during the submission period because delivery of the envelope to Council’s PO Box on 3 March 2014 was delivery to Council, and constituted receipt of the submission under s79(5). It did not matter that Council registered and processed the submission on 12 March 2014, outside of the submission period.
Accordingly, the Applicant was considered by the Court to be an objector under s4(1) of the EPA Act, with a right of appeal against the decision of Council.
The case serves as a reminder that councils, when processing submissions by objectors, should be wary that an objector need only comply with the requirement to ‘make’ a submission ‘to’ the council within the submission period. Councils must ascertain when the submission was received, and not when it is processed.
Councils must also ensure that the extension of the submission period is done in accordance with s79 of the EPA Act. This means ensuring that the development application and all accompanying material remains on display for the duration of the extended submission period, so it is available for all potential objectors to view.