The recent Court of Appeal case Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2022] NSWLEC 150 considered the question of when a development application is ‘made’ and whether payment is required for it to be made, in the context of considering transitional and savings provisions relating to the repeal and replacement of environmental planning instruments.
The appeal specifically focused on the transitional provision in schedule 7A of State Environmental Planning Policy (Housing) 2021 (“SEPP Housing”), which provided that the new SEPP did not apply to:
“a development application made, but not yet determined, on or before the commencement date [26 November 2021]” (emphasis added)
The applicant contended that the primary Judge erred in law by incorrectly assessing the development application against SEPP Housing as opposed to the policies repealed by SEPP Housing. In that regard, the applicant alleged that the development application had been “made” on or before the commencement date of SEPP Housing.
Notably, the applicant had uploaded to the NSW Planning Portal the development application and certain accompanying documents and information on 22 October 2021. The Council notified the Appellant of the fee to accompany the development application 2 December 2021 and the fee was paid on 9 December 2021. The notification of the lodgement was made by the NSW Planning Portal on 13 December 2021.
The Court of Appeal interpreted the above transitional provision to require a precise date or time at which the development application is made. Having regard to the requirements of the Environmental Planning and Assessment Amendment (Planning Portal) Regulation 2021 (NSW) the Court found that the precise date or time was affected by the notification of lodgement on the NSW Planning Portal. With that in mind, the Court equated the lodging of the application with the making of the application, echoing the reasoning in Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312 which emphasised reference to an application being made is reference to the very time of its lodgement. His Honour Justice Preston said:
These provisions making the lodgement of a development application contingent on the payment of the fee notified to the applicant corroborate the conclusion that a development application is not made until the fee to accompany the development application is paid. The lodging of a development application on the NSW planning portal is the manner requirement for making a development application. A development application that is not lodged is not made. Thus, cl 50(9) operates not only to deem a development application not to have been “lodged” until the fee notified to the applicant has been paid, but also to cause the development application not to be “made” as the manner requirement for making a development application would not be satisfied.
Since the notification of lodgement was not made until 13 December 2021 the primary Judge was correct to find the application had not been made on or before 26 November 2021.
The Court also considered and commented on the statutory requirements in terms of documents lodged in support of a development application (to sufficiently comprise “the development application”). In order for a development application to have been properly made/lodged, an applicant must include the documents specified in Schedule 1 of the EPA Regulation (as applicable). Furthermore, the Court commented on the ability for an applicant to approach the Court to seek an order in Class 4 proceedings to require Council to advise the applicant of the development application fee in order for it to be paid (in circumstances where the Council delays in the provision of this advice and time is of the essence in terms of lodgement of a development application).
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
