Posted on November 18, 2022 by Liam Mulligan

Who decides what planning instruments apply to a DA?

In most cases, it is clear which environmental planning instruments apply to a given development application. This is because s 4.15(1)(a) mandates consideration of those planning instruments that ‘apply to the land to which the development application relates‘.  Often, planning instruments will contain a map of the land to which they relate (such as the Land Application Map in a standard form local environmental plan). In such cases, it is a relatively simple matter to determine whether a particular instrument applies to the land to which a DA relates.

But what happens where the application of a planning instrument depends (either expressly or impliedly) on the formation of a particular opinion, or state of satisfaction? In those cases, is it the consent authority who can finally and definitively form the state of satisfaction (and in doing so, determine whether the planning instrument applies) or is the Court the final authority on that question?

A recent case in the NSW Court of Appeal answers that question.

In Ross v Lane [2022] NSWCA 235, the appellant challenged a council’s decision to grant consent to a DA for alterations and additions to an apartment, the effect of which was to add another storey to part of the building in which the apartment was contained. The appellant contended that the additional storey caused significant view loss to her apartment in an adjoining building. The basis of her challenge to the consent was that State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (‘SEPP 65‘) applied to the DA, and the Council had failed to comply with, or have regard to, any of the requirements of the SEPP. In this way it had failed to comply with its statutory obligation under s 4.15(1)(a) of the EPA Act and the consent was – on the applicant’s case – invalid.

Clause 4 of SEPP 65 governs the application of the policy. Relevantly, it provides:

(1)  This Policy applies to development for the purpose of a residential flat building, shop top housing or mixed use development with a residential accommodation component if—

(a)  the development consists of any of the following—

(i)  the erection of a new building,

(ii)  the substantial redevelopment or the substantial refurbishment of an existing building,

(iii)  the conversion of an existing building, and

The Appellant’s case, both at first instance in the Land and Environment Court and on appeal, was that the DA involved the the substantial redevelopment or the substantial refurbishment of an existing building, and so SEPP 65 applied. As a matter of fact, both the Land and Environment Court and the Court of Appeal determined that the DA did not involve the substantial redevelopment or refurbishment of an existing building.

Nonetheless, the Court of Appeal considered whether this question – which is clearly a contestable question of fact about which reasonable minds might differ – was a question for the consent authority to conclusively determine, or whether it is one which can only be authoritatively determined by a Court.

By majority (Basten and MacFarlan JJA; Beech-Jones JA dissenting), the Court of Appeal determined that it is for the consent authority, not the Court to conclusively determine whether cl. 4(1)(1)(ii) of SEPP 65 is engaged. By extension, the Court also found that, where the application of a planning instrument depends on the formation of some state of satisfaction or belief, it is for the consent authority to form that state of satisfaction or belief and the formation of that opinion can only be challenged on judicial review (rather than merit) grounds.

The Court’s reasoning depends on a relatively complex process of statutory interpretation, which it is not convenient to recite in this blog. However, the situation is in many ways similar to the law regarding challenges to complying development certificates (‘CDC‘). In the well known case of Trives v Hornsby Shire Council [2015] NSW CA 158, the Court of Appeal found that a CDC cannot be subject to challenge on the grounds that the development authorised by the certificate is not in fact complying development. All that can be challenged is the certifier’s belief or state of satisfaction that the development was complying development – that belief can be judicially reviewed (for instance on the grounds that is was manifestly unreasonable), but it cannot be otherwise impugned or attacked.

Part of the reasoning in Trives – as it was in this case – is that it would be inconvenient and internally inconsistent for the legislature to confer a power on certifiers (in the Trives example) to issue CDCs, but to reserve the question of whether the development was complying development for later determination by the Court. Such a situation would leave significant uncertainty around any CDC because the fundamental basis of the CDC would be open to re-interrogation in Court. Hence, it was determined, that cannot have been the intention.

The engagement or otherwise of a particular planning instrument will often be a matter that goes to the consent authority’s power to determine a development application. Where the finding of a particular fact engages the power to determine a DA, that fact is often called a “jurisdictional fact”. As this case makes clear, the law regarding jurisdictional facts is somewhat unclear. Nonetheless, the case is an important one, as it makes clear that the determination of what planning instruments actually apply to a DA is a matter that must be determined by the consent authority. The Court on appeal (or review) is required to be deferent to that determination and cannot interfere with it, save where a traditional ground of judicial review can be established. As Basten JA’s judgment explains (at [102]):

There is nothing in the language of the Assessment Act which states or necessarily implies that a question as to the application in a particular case of a particular environmental planning instrument is a matter which can only be determined authoritatively by the court. Rather, by requiring the consent authority to have regard to certain matters, the appropriate implication is that the consent authority is empowered and required to determine which matters are relevant, and how they are engaged, in relation to a particular development application.

In our view, Justice Beech-Jones’ dissent is well worth reading, in particular for His Honour’s analysis of clause 4 of SEPP 65 (which forms part of the Court’s ruling) . His Honour rejected the Appellant’s submission that the question of whether an application proposed substantial redevelopment or refurbishment must be determined by reference to the amenity impacts of the proposal, finding (at [55]):

Leaving aside cl 4(1)(a)(ii) the remainder of its provisions do not involve any consideration of the effect on the amenity or the like of neighbouring properties. Thus, the answer to whether a “new building” is either erected or is not, or whether an existing building is converted or not, does not depend on any assessment of their impact on neighbouring properties. Similarly, a determination of whether or not a building has at least three or more storeys or at least four or more dwellings is not determined by any consideration of neighbouring properties. It is difficult to see why, of all the forms of development specified in cl 4, only a determination of whether the re-development of a building is substantial as contemplated by cl 4(1)(a)(ii) should require a consideration of impacts on the amenity, etc. of neighbouring properties.

You can read the Court of Appeal’s decision here. If you have any questions about this blog please contact Liam Mulligan.