NSW Court of Appeal confirms when a development application is 'made'

The NSW Court of Appeal has answered a critical planning question: when is a development application (DA) truly 'made'?

In dismissing an appeal from the NSW Land and Environment Court (LEC), the Court of Appeal held that a DA is not 'made' until all documents had been provided and fees paid.

Snapshot

• The NSW Court of Appeal has dismissed an appeal by Hinkler Ave 1 Pty Limited (Hinkler) concerning the date on which a DA was 'made' under the applicable statutory planning framework at that point in time.
• In doing so, the Court of Appeal held that a DA is only 'made' once all required documents are provided and fees paid.
• The decision has significant implications for any proponents seeking to develop and rely on savings provisions under environmental planning instruments (EPIs). Developers should take care to ensure all steps in the DA process are satisfied in a timely manner, including responding to requests for information and the payment of DA fees.

Background

In 2021, the former Department of Planning Infrastructure and Environment sought to consolidate five existing housing-related State Environmental Planning Policies (SEPP) into a single SEPP, known as the State Environmental Planning Policy (Housing) 2021 (Housing SEPP).

On 26 November 2021, the Housing SEPP commenced (see our previous blog post for more information on this update), and repealed and replaced the State Environmental Planning Policy (Affordable Rental Housing) 2009.

However, clause 2(1)(a) of Schedule 7A of the Housing SEPP contains a ‘general savings provision’ (Savings Provision), which provides that the Housing SEPP (emphasis added):

…does not apply to… a development application made, but not yet determined, on or before the commencement date.

LEC finds that a DA is 'made' when all documents provided and fees paid

Hinkler commenced a Class 1 LEC appeal against the deemed refusal by Southerland Shire Council (Council) of its DA for the demolition of existing structures and construction of a mixed-use development on land in Caringbah.

As a separate question in the proceedings, the LEC was asked to determine whether Hinkler’s DA was 'made' on or before the commencement of the Housing SEPP in circumstances where:

• on 22 October 2021, Hinkler uploaded a DA to the NSW Planning Portal, omitting an A4 plan of the building;
• on 26 November 2021, the Housing SEPP commenced;
• on 1 December 2021, Hinkler satisfied Council’s final request for the required documents and information;
• on 2 December 2021, Council notified Hinkler of the fee accompanying the DA; and
• on 9 December 2021, Hinkler paid the fee.

Further, the former Environmental Planning and Assessment Regulation 2000 (Former Regulation) provided at that time that:

• a DA must be in the approved form, contain and be accompanied by all specified / required information and documents, and be lodged on the NSW Planning Portal: cl 50(1);
• a DA is taken not have been lodged until the fees notified to the applicant by means of the NSW Planning Portal have been paid: cl 50(9); and
• the determination of a fee to accompany a DA must be made within 14 days after the consent authority receives the DA: cl 256.

Hinkler contended that the DA was 'made' on 22 October 2021 when the DA was uploaded to the NSW Planning Portal; and that Council’s alleged failure to notify Hinkler of the applicable fee within 14 days of that date should not deprive Hinkler from having the advantage of the Savings Provision.

The LEC found that the DA had not been 'made' on or before the commencement of the Housing SEPP on 26 November 2021 and did not benefit from the Savings Provision.

In making this decision, the LEC held that:

• Hinkler was required to provide plans indicating the building’s height and external configuration in a concise visual form for Council to then notify adjoining landowners and occupiers of the DA pursuant to cll 56(2)(b) and, by inference, cll 77(1)(b)(ii) and (2)(e) of the Former Regulation;
• Hinkler did not provide the required information until a site and elevation plan were provided on 1 December 2021;
• Council’s notification to Hinkler of the DA fee on 2 December 2021 was within the 14 day period following receipt of the requisite documentation, pursuant to cl 256 of the Former Regulation; and
• the DA could only be regarded as having been 'made’ when lodgement of the DA was completed by payment of the required fee, which was paid on 9 December 2021.

Court of Appeal avoids an 'incoherent' DA process

On appeal, the Court of Appeal confirmed the LEC’s finding that the DA had not been 'made' prior to the commencement of the Housing SEPP.

In dismissing the appeal, the Court of Appeal affirmed that:

• the lodgement of the DA was not yet complete until payment of the fee had been made – to argue that the fee only became payable once Hinkler received the fee notification ignored the context and underlying purpose of cl 50(9) of the Former Regulation;
• a DA is not considered to be received in its entirety while – Hinkler did not satisfy Council’s final request for the required documents and information until 1 December 2021;
• Council’s notification of the payable fee on 2 December 2021 was within the 14 day period prescribed by cl 256(1) of the Former Regulation following receipt of the required documents and information; and
• Hinkler’s position that the DA had been 'made' (by being initially lodged on the NSW Planning Portal) at all times until the DA fee was notified “would render the process incoherent” because the DA would then be 'unmade' upon notification of the applicable fee.

Key takeaways

The Court of Appeal decision is an important reminder that strict compliance with the DA process should be followed by all applicants, to the extent possible.

The passing of time between lodging material on the NSW Planning Portal and the payment of any applicable DA fees creates unwanted risks for a project, particularly during periods of active planning reform.

When lodging a DA, applicants should be mindful of:

• any proposed legislative and EPI changes; and
• the need to promptly fulfil all DA documentation requirements and settle all DA fees as soon as possible.

If this decision has any immediate implications for your project, please contact us.

By Peter Briggs, Partner, Tom Dougherty, Senior Associate, and Andrew Mahler, Solicitor. With thanks to Caitlin Turner, Paralegal.