Hinkler Ave 1 Pty Limited v Sutherland Shire Council

[2023] NSWCA 264

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264

Hearing dates:

11 August 2023

Date of orders:

2 November 2023

Decision date:

02 November 2023

Before:

Gleeson JA at [1];
Basten AJA at [2];
Preston CJ of LEC at [71]

Decision:

(1) Grant leave to appeal against the decision of Moore J of 16 December 2022 in the form of the draft notice of appeal dated 14 March 2023.

(2) Direct the applicant to file the appeal within 7 days of this order.

(3) Dismiss the appeal.

(4) Order the applicant to pay the respondent’s costs of the application for leave to appeal and the appeal.

Catchwords:

PLANNING AND ENVIRONMENT – development application for mixed use development – repeal and replacement of environmental planning instrument – savings provision for development application “made, but not yet determined” by commencement date – when development application “made” – requirements to comply with prescribed form and manner – whether compliance with requirements – interpretation and application of requirements

Legislation Cited:

Biodiversity Conservation Act 2016 (NSW), s 7.7(2)

Environmental Planning and Assessment Act 1979 (NSW), ss 4.12, 4.15, 4.16, 8.8, 8.11, 8.14, 14, 76, 77; Pt 8, Div 8.3

Land and Environment Court Act 1979 (NSW), s 57

Environmental Planning and Assessment Regulation 2000 (NSW), cll 49, 50, 51, 54, 56, 59, 113, 246, 246A, 246B, 255, 256; Div 1 of Pt 15; Sch 1, cl 2(1)(d)

State Environmental Planning Policy (Housing) 2021 (NSW), Sch 7A, cl 2

Cases Cited:

Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245

Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312; [2000] NSWCA 364

Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24

Chambers v Maclean Shire Council (2003) 126 LGERA 7; [2003] NSWCA 100

Commitment Pty Ltd v Georges River Council (No 2) [2022] NSWLEC 94

Currey v Sutherland Shire Council (2003) 129 LGERA 223; [2003] NSWCA 300

Forrest & Forrest Pty Ltd v Wilson (2017) 262 CLR 510; [2017] HCA 30

Helman v Byron Shire Council (1995) 87 LGERA 349

McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209

Planners North v Ballina Shire Council (2021) 251 LGERA 309 [2021]; NSWLEC 120

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Roads and Maritime Services v Desane Properties Pty Ltd (2018) 98 NSWLR 820; [2018] NSWCA 196

The King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; [1944] HCA 42

Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8

Category:

Principal judgment

Parties:

Hinkler Ave 1 Pty Limited (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
Mr A Pickles SC / Ms L Sims (Applicant)
Mr T Robertson SC / Ms J Reid (Respondent)

Solicitors:
Mills Oakley (Applicant)
Pikes & Verekers Lawyers (Respondent)

File Number(s):

2022/387881

 Decision under appeal 

Court or tribunal:

Land and Environment Court of New South Wales

Jurisdiction:

Class 1

Citation:

[2022] NSWLEC 150

Date of Decision:

16 December 2022

Before:

Moore J

File Number(s):

258252 of 2022

HEADNOTE

[This headnote is not to be read as part of the judgment]

Hinkler Ave 1 Pty Limited (the applicant) lodged an appeal to the Land and Environment Court in respect of a deemed refusal of a development application by Sutherland Shire Council (the respondent). The applicability of an environmental planning instrument, the State Environmental Planning Policy (Housing) 2021 (NSW) (2021 SEPP), to the development application depends on when the development application was made.

The applicant uploaded to the NSW planning portal the development application and certain accompanying documents and information on 22 October 2021. These did not include an A4 plan of the building that indicates its height and external configuration, as erected. The commencement date of the 2021 SEPP was 26 November 2021. The respondent notified the applicant of the fee to accompany the development application on 2 December 2021. The applicant paid the fee on 9 December 2021.

In answering a separate question, the primary judge held that the development application lodged by the applicant was not “made” on or before 26 November 2021 for the purpose of the savings provision in the 2021 SEPP. The primary judge held that the manner and form requirements of cl 50(1) of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation 2000) for making a development application, specifically the inclusion of an A4 plan of the building and payment of the fee to accompany the development application, had not been complied with on or before 26 November 2021. The effect of this decision was that the development application lodged by the applicant on 22 October 2021 was governed by the 2021 SEPP rather than the former State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) which it replaced.

The applicant sought leave to appeal against the primary judge’s determination of the separate question on questions of law. The applicant contended that the development application had been lodged, and therefore made, when it was uploaded to the NSW planning portal on 22 October 2021 and remained lodged and made at the date of commencement of the 2021 SEPP on 26 November 2021, as at that date no fee had been notified and hence could be paid.

The applicant challenged the primary judge’s decision on five grounds. The applicant contended that the judge erred –

(i)    as to when a development application is made;

1. in finding that lodgement was not complete until the fee was paid;

(iii)    in not determining for himself whether the development application met the statutory requirements; and

1. in identifying the requirements for the plan to accompany the development application.

Held, granting leave to appeal but dismissing the appeal:

In relation to (i) (making of development application)

1. The transitional provision in cl 2 of Sch 7A to the 2021 SEPP requires a precise date or time at which a development application is made. That purpose is effected by notification of lodgment on the NSW planning portal. The planning portal recorded the date of notification of lodgement as 13 December 2021; thus the primary judge was correct to find that the application had not been “made” on or before 26 November 2021: at [27]-[29], [33] (Basten AJA); [1] (Gleeson JA).

EPA Regulation 2000, cl 50(8); Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312; [2000] NSWCA 364 applied

1. A development application that is not accompanied by the information and documents required by the Environmental Planning and Assessment Act1979 (NSW) and EPA Regulation 2000 and the payment of the fee required by the EPA Regulation 2000, is incomplete and ineffective to engage the power of the consent authority to grant consent to the development application. This means that the development application had not been “made” for the purpose of the savings provision: [113], [114] (Preston CJ of LEC).

In relation to (ii) (payment of fees required for lodgement)

1. The Council must have a complete development application before costs can be estimated and a fee for service calculated and notified to the applicant: at [34], [40]. A development application is taken not to be lodged until the fee to accompany the development application is paid. Accordingly, the application is not made until the fee is paid: at [37], [43] (Basten AJA), [1] (Gleeson JA); [129], [160] (Preston CJ of LEC).

EPA Regulation 2000, cl 50(8), (9) applied

1. Notification of the fee by the Council on 2 December 2021 did not contravene the requirement that the fee be notified within 14 days of lodgement, as the Council’s final request for required documents and information had not been satisfied until 1 December 2021: at [44], [46] (Basten AJA), [1] (Gleeson JA); [164] (Preston CJ of LEC).

EPA Regulation 2000, cl 256(1) applied

In relation to (iii) (not determining for himself whether the development application met the statutory requirements)

1. The primary judge’s function, in hearing an appeal from the refusal (or deemed refusal) of a development application, was to make the decision which should have been made by the consent authority. The primary judge did not fail to determine for himself whether the development application had been made by the critical date: at [67] (Basten AJA), [1] (Gleeson JA); [147] (Preston CJ of LEC).

2. Whether compliance with the statutory framework was to be determined by the consent authority, or by a Court exercising a judicial review function, was a matter of statutory interpretation: at [60]. The applicant failed to establish that the primary judge erred in law in finding that the application did not comply as at 26 November 2021: at [61] (Basten AJA), [1] (Gleeson JA).

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 applied

In relation to (iv) (providing plan of building)

1. The primary judge did not misdirect himself in having regard to a cross-reference within cl 2(1)(d) of Sch 1 to cl 56(2)(b) of the EPA Regulation 2000 which demanded the availability of the prescribed information “in a concise visual form”. The judge was correct to focus on those public purposes in considering the need for compliance with the requirements of the EPA Regulation 2000: at [68] (Basten AJA), [1] (Gleeson JA), [150]-[152] (Preston CJ of LEC).

JUDGMENT

1. GLEESON JA: I agree with the orders proposed by Preston CJ of LEC for the reasons given by Basten AJA.

2. BASTEN AJA: This application for leave to appeal concerns a short point as to the operation of a general savings provision in a schedule to the State Environmental Planning Policy (Housing) 2021 (“Housing SEPP”). The Housing SEPP replaced two earlier State Environmental Planning Policies, one of which dealt with affordable rental housing. The question was whether a development application lodged by the applicant was subject to the Housing SEPP, or to the Policy which it replaced. The answer to that question turned on a transitional provision to the effect that the Housing SEPP did not apply to “a development application made, but not yet determined, on or before the commencement date”, being 26 November 2021.

3. On 22 October 2021, the applicant uploaded a number of documents to the NSW Planning Portal (“planning portal”), a website maintained by the Secretary of the Department of Planning and Environment. The consent authority, the respondent Council, failed to grant (or refuse) consent within the time provided for that step to be taken, thus permitting the applicant to lodge an appeal in the Class 1 jurisdiction of the Land and Environment Court from a deemed refusal of consent.

4. In a judgment delivered on 16 December 2022,[1] Moore J answered a separate question, namely:[2]

“Is development application DA 21/1251 to be regarded as having been made on or before 26 November 2021 for the purpose of cl 2(1)(a) of Sch 7A [to the] State Environmental Planning Policy (Housing) 2021?”

1. Hinkler Ave 1 Pty Ltd v Sutherland Shire Council [2022] NSWLEC 150 (Hinkler).

2. Hinkler at [15].

5. The answer given was “no”. That meant that the development application was governed by the Housing SEPP. The effect was to subject the residential component of the proposal to a more onerous requirement with respect to the provision of affordable rental housing than if it had been governed by the replaced Policy.

6. Although the proceeding was commenced in the Class 1 jurisdiction of the Land and Environment Court, because the challenged order or decision was that of a judge of the Court an appeal lay to this Court on a question of law. [3] However, because the answer to the separate question did not finally dispose of the proceeding, leave was required. [4] Leave should be granted: a reasonably arguable question as to the legal regime applicable to the proposed development, which turns on a question of construction of a statutory instrument, is a matter which should properly be determined in advance of the trial.

   3. Land and Environment Court Act 1979 (NSW), s 57(1).

   4. Land and Environment Court Act, s 57(4)(d).

Construction of transitional provision

7. The key provision in Sch 7A to the Housing SEPP was cl 2, which relevantly provided:

2   General savings provision

(1)   This Policy does not apply to the following matters—

(a)   a development application made, but not yet determined, on or before the commencement date.

Clause 1 of Sch 7A identified the “commencement date” as 26 November 2021.

8. The language of cl 2(1)(a) envisages two processes with a precisely determinable transition date, namely (i) the making of a development application and (ii) the process of determining the application. Thus, the first limb assumes that certain steps may be taken by which a development application is “made”, whereas the second limb refers to a process of determination which may have commenced but not been completed.

9. Since commencement on 16 April 2021 of the Environmental Planning and Assessment Amendment (Planning Portal) Regulation 2021 (NSW) (“Portal Amendment Regulation”), critical steps in the processes of obtaining approval for development proposals are taken by uploading documents electronically to the planning portal. Making a development application will involve lodging documents on the portal.

10. Fixing an event which must occur either before or after 26 November 2021 does not allow for an interim period during which whatever has been lodged is not capable of determination. Accepting that there may be a number of steps to be taken by a party proposing a development, before the application is made, and perhaps the incurring of significant expenditure which may not be recoverable if the new regime precludes a viable development, the Housing SEPP nevertheless draws a clear line, of the kind often drawn in dealing with changes to a regulatory regime.

11. While the requirements for a development application have changed over the years, the criterion identified in relevant transitional provisions has not. Thus, changes made on 1 July 1998 to the Environmental Planning and Assessment Act 1979 (NSW) (“Planning Act”) and the regulation then in force, provided that the unamended legislation “continues to apply to and in respect of any development application made, but not determined by the consent authority, before the appointed day”, as if the amendments had not been enacted. That provision lay at the heart of Botany Bay City Council v Remath Investments No 6 Pty Ltd [5] (Remath Investments), a case in which a particular development proposal was capable of obtaining consent under the unamended legislation, but not under the amended legislation. At that time, the requirements for a development consent were set out in s 77 of the Planning Act, where s 77(3) relevantly read as follows:

    5. (2000) 50 NSWLR 312; [2000] NSWCA 364.

77   Making of development applications

…

(3)   A development application shall:

(a)   be made to the consent authority,

(b)   be made in the prescribed form and manner,

(c)   where the application is not in respect of designated development, contain, or, as may be provided by the regulations, be accompanied by, such information and particulars as may be prescribed,

(d)   where the application is in respect of designated developmental be accompanied by an environmental impact statement in the prescribed form prepared by or on behalf of the applicant, and

…

(e)   be accompanied by such fee determined by the consent authority (not exceeding the maximum amount, if any, prescribed in relation thereto) or where a fee is prescribed, by that prescribed fee.

12. Stein JA (with the agreement of Handley JA) noted that the reference in the transitional provision to an application being “made”, “points us directly to s 77(3)”. His reasoning continued:

“13   I see no warrant for splitting the requirements of a development application between it being made in the prescribed form and the documents necessary to accompany it, as well as the payment of the fee. I cannot accept that the latter requirements may be hived off so as not to be requirements for the making of the development application.

14 That is not to say that a development application is invalid or void if it is not accompanied by, for example, an EIS, SIS or the prescribed fee, at the very time of its lodgement with the consent authority. Substantial compliance may be satisfied by the later accompaniment of the required document under subparas (c), (d) or (d1) or the fee under subclause (e) of s 77(3).

…

17   It is common ground that it was not so made in that the development application was not accompanied by an EIS which substantially complied with the unamended Act as at the appointed day.

18 In my view, a development application cannot be seen as ‘made’ unless and until there has been substantial compliance with all of the requirements of s 77(3). Until then, it is ineffective and incomplete.”

13. To similar effect, Fitzgerald JA stated:

“47 Whether or not it is technically correct to say that a development application is ‘invalid’ while the requirements of s 77 of the unamended Act are not substantially complied with, references to ‘invalidity’ which can be ‘cured’ are capable of suggesting that a ‘cure’ is retrospective. …

48 … By s 77(3)(d) of the unamended Act, where a development application ‘is in respect of designated development’ it must ‘be accompanied by’ an EIS in the prescribed form. In either case, by s 77(3)(e) the development application must be ‘accompanied by’ the prescribed fee. Subsection 77(3)(b) requires that a development application be ‘made’ not only in the prescribed form but in the prescribed manner. A development application in the prescribed form which is not ‘made’ in the manner prescribed by s 77(3)(c) or (d) and (e) is not ‘made’ in the prescribed manner.”

14. This reasoning, which was not challenged in this Court, is consistent with the conclusion reached in the Land and Environment Court in this case. The only question is whether Remath Investments is distinguishable because cl 50 of the Environmental Planning and Assessment Regulation 2000 (NSW) (“2000 Regulation”), as in force in November 2021, imposed materially different requirements for making a development application. For the reasons which follow, no material changes have been effected.

15. The bulk of the submissions, both in the Land and Environment Court and in this Court, were directed to the operation of provisions as to the manner of making, and content of, a development application, and how it was to be lodged. That terminology was apposite in the context of current provisions requiring lodgement on the planning portal. There was little reference in the 2000 Regulation, as in force in November 2021, to a development application being “made”, and the one material reference did not necessarily reflect the language of the transitional provision.

Requirements of cl 50 of the Regulation

16. Clause 50 of the 2000 Regulation relevantly provided:

50   How must a development application be made?

(1)   A development application, other than an application for State significant development, must—

(a)   be in the form that is approved by the Planning Secretary and made available on the NSW planning portal, and

(b)   contain all of the information that is specified in the approved form or required by the Act and this Regulation, and

(c) be accompanied by the information and documents that are specified in Part 1 of Schedule 1 or required by the Act and this Regulation, and

(d)   be lodged on the NSW planning portal.

…

(8)   The applicant must be notified, by means of the NSW planning portal, that the development application has been lodged.

(9)   A development application is taken not to have been lodged until the fees notified to the applicant by means of the NSW planning portal have been paid.

Note—

The amount of a fee payable by an applicant for a development application is determined in accordance with Part 15.

17. Minor changes to the structure of the legislation have been made over the years. The first change was to remove the substance of s 77(3) from the Planning Act to the Regulation. The Planning Act now merely provides:

4.12   Application

(1)   A person may, subject to the regulations, apply to a consent authority for consent to carry out development.

Nothing turns, for present purposes, on that change in location.

18. The second minor change was to move the first criterion in s 77(3), that the application be “made to the consent authority” to par (d) of cl 50(1), which requires that it be “lodged on the NSW Planning Portal”. However, prior to the Portal Amendment Regulation, which relevantly commenced on 16 April 2021, cl 50 provided that the application “must be delivered by hand, sent by post or transmitted electronically to the principal office of the consent authority”. The substantive effect is unchanged: the application is now made by uploading it electronically to a special-purpose website.

19. The other changes, being the use of an approved form, the prescription of information to be contained in the application, and the requirement that it be accompanied by information or documents, are all substantially to the same effect (and indeed largely in the same terms) as s 77(3). The provision with respect to applications requiring an environmental impact statement, the subject of Remath Investments, is now found in subs (1AA). However, the reasoning in Remath Investments dealt more broadly with the need for substantial compliance with requirements as to the documents and the fee to accompany the application.

20. The information which a development application “must contain” was, in November 2021, set out in Pt 1 of Sch 1 to the 2000 Regulation. Clause 2 of Sch 1 provided:

2   Documents to accompany development application

(1)   A development application must be accompanied by the following documents—

(a)   a site plan of the land,

(b)   a sketch of the development,

(c)   a statement of environmental effects (in the case of development other than designated development or State significant development),

(d)   in the case of development that involves the erection of a building, an A4 plan of the building that indicates its height and external configuration, as erected, in relation to its site (as referred to in clause 56 of this Regulation),

(e)   an environmental impact statement (in the case of designated development or State significant development),

….

21. As will be explained below, there was an issue as to the primary judge’s reasoning with respect to compliance with cl 2(1)(d) of the Schedule, so that it is convenient to note the terms of cl 56 of the 2000 Regulation, referred to in par (d):

56   Extracts of development applications to be publicly available

(1)   This clause applies to all development other than State significant development or designated development.

(2)   Extracts of a development application relating to the erection of a building—

(a)   sufficient to identify the applicant and the land to which the application relates, and

(b)   containing a plan of the building that indicates its height and external configuration, as erected, in relation to the site on which it is to be erected, if relevant for that particular development,

are to be made available on the NSW planning portal.

Note—

The erection of a building is defined in the Act to include the rebuilding of, the making of structural alterations to, or the enlargement or extension of a building or the placing or relocating of a building on land.

22. The requirement in s 77(3)(e) that the application “be accompanied by such fee determined by the consent authority” was recast in the form of a negative stipulation in cl 50 (9) of the amended 2000 Regulation:

50   How must a development application be made?

…

(9)   A development application is taken not to have been lodged until the fees notified to the applicant by means of the NSW planning portal have been paid.

Note—

The amount of a fee payable by an applicant for a development application is determined in accordance with Part 15.

The effect of this provision was the same as that of the provision discussed in Remath Investments.

23. Finally, now that all steps are taken or recorded on the planning portal, cl 50 made provision for certainty as to when lodgement had been achieved, by the giving of notice pursuant to cl 50(8):

50   How must a development application be made?

…

(8)   The applicant must be notified, by means of the NSW planning portal, that the development application has been lodged.

Application of provisions

24. The heart of the applicant’s case was that lodgement of an application under the amended 2000 Regulation did not equate with the making of an application for the purposes of the transitional provision. For reasons explained below, it is tolerably clear that, although the mechanics of making an application have changed, it is the lodgement of documents on the planning portal which now constitutes the making of an application. The continued use of that term in the transitional provision is consistent with the continuity of the pre-conditions to the making of a development application, despite the change in means.

25. If that conclusion be correct, there were three problems facing the applicant in its contention that its development application had been “made” by 26 November 2021. They were:

1. absence of notification of lodgement pursuant to cl 50(8) until 13 December 2021;

2. non-compliance with cl 50(9) in relation to payment of fees until 13 December 2021; and

3. non-compliance with cl 50(1) with respect to the provision of information and documents.

26. Factually, the applicant did not dispute (a) or (b); if either (a) or (b) is made good, it submitted that (c) falls away. However, (c) was contentious, both factually and legally and may therefore be addressed last.

1. Making an application by lodgement

27. As noted above, the transitional provision requires a precise date or time at which a development application is made. This militates in favour of an understanding of the 2000 Regulation which permits a ready finding as to that event. On one view, that is the purpose and effect of cl 50(8), which requires that the applicant be notified that the development application has been lodged.

28. Mechanically, the notice is generated by the planning portal itself. However, that must be a result of steps taken by a party to the process. It is clearly not the applicant that directly causes the notice to be given, because it is the recipient of the notice. The purpose of the notice is to let the applicant know that lodgement is complete. The only other party which can cause the giving of the notice is the consent authority. On that view, the application is lodged when the consent authority provides a notification to that effect on the planning portal. The portal recorded the date of lodgement as 13 December 2021; both the applicant and the Council received emails notifying them of that fact. The email to the applicant stated:

“Your application for development … has been accepted for assessment by Council. The application is now lodged.”

29. This conclusion equates the lodging of the application with the making of the application. In practical terms, that understanding achieves coherence between the various forms in which the requirements have been stated and the consistent language of transitional provisions. Thus, the reasoning in Remath Investments as to when the application was “made” referred to “the very time of its lodgment”, that is the lodgement of the various forms, information, accompanying documents and prescribed fee. [6] Before the amendments to the 2000 Regulation by the Portal Amendment Regulation, cl 50(1)(d) provided that the application “must be delivered by hand … to … the consent authority”. With the additional detail as to the means of delivery, the effect of that provision was no different from the requirement that it be “made to the consent authority”. There is no reason to suppose that when the planning portal was introduced, any change in the substantive effect of the paragraph was intended; rather, the nomenclature was changed to reflect the fact that uploading to an electronic website was better described as lodging than as delivering. The legislative history thus supports the conclusion that a development application is made when it is lodged.

1. Other provisions requiring a single event

   6. Remath Investments at [14].

30. As noted above, there are reasons for providing a clear and objective determination of that date which are not dependent on the possibility of a transitional provision having operation; the transitional provision is not the only kind of provision which requires such a determination. An example, which is apposite both to the present case and Remath Investments, is the period, lapse of which creates a deemed refusal by the Council, and thus engages a right of appeal to the Land and Environment Court. The right to appeal from a deemed refusal is conferred by s 8.11 of the Planning Act, which states that where a consent authority has not determined an application for development consent “within the period prescribed by the regulations for the determination of the application” the application is deemed to have been refused. Clause 113 of the 2000 Regulation identified the deemed refusal period as, generally, 40 days. Clause 113(2) provided that the deemed refusal period is measured from “the date the development application is lodged on the NSW planning portal”.

31. Before the Portal Amendment Regulation, the period was measured from “the date the development application is lodged with the consent authority”. Before that, the Planning Act provided in s 96(1) that the period ran “after lodgment of that development application”. Remath Investments turned on that provision and the period for deemed refusal having commenced when the initial application (without a complying EIS) was lodged. As explained by Fitzgerald JA:

“38 The essential argument for each party can be briefly stated. According to Remath, a development application was “made” for the purpose of cl 11 of the transitional clause when a development application in the prescribed form was lodged with the Council in accordance with ss 77(a) and (b) of the unamended Act. It is not in dispute that that was done prior to 1 July 1998. According to the Council, a development application was not “made” for the purpose of cl 11 of the transitional regulation until all elements of s 77(3) were substantially complied with. It is not in dispute that that was not until after 1 July 1998.”

The Council’s submission was accepted, [7] thus equating lodgement of the required matters with the application being “made”.

7. Remath Investments at [50] (Fitzgerald JA).

32. The 2000 Regulation also required that where the concurrence of another authority was required, the development application must be forwarded to the relevant concurrence authority “within 14 days after the application is lodged”: cl 59(2). Self-evidently, it must be the completed application which is to be forwarded, as there might otherwise be omissions from the material which the concurrence authority would be required to consider.

33. However, it did not appear to be an issue in the present case that the date of lodgement was a date at which the completed application had been lodged. Rather, the submission appeared to be that the application was “made” before that date of lodgement. However, that was the contention rejected in Remath Investments. It should be rejected in the statutory context which operated in November 2021.

1. Payment of fees

34. As noted above, cl 50(9) stated that a development application was “taken not to have been lodged” until the fees notified to the applicant had been paid. The note to the provision indicated that the amount of a fee “payable by an applicant for a development application” was to be determined in accordance with Pt 15. Part 15 provided for the maximum fees payable for particular forms of development, implying that the consent authority might fix a lesser fee if thought appropriate. The table of fees for development applications involving the erection of a building were set out in cl 246B (relevantly for present purposes), and were calculated by reference to the estimated cost of the work to be carried out.

35. The fee was treated as a fee for service and cl 246A(2) identified the services covered by the fee:

246A   What is the maximum fee?

(1)   The fee for a development application must not exceed the maximum amount determined in accordance with this Division.

(2)   The services covered by the fee for a development application include the following—

(a)   the receipt of the application, and any internal referrals of the application,

(b)   consideration of the application for the purpose of determining whether any further information is required in relation to the proposed development,

(c)   inspection of the land to which the proposed development relates,

(d) evaluation of the proposed development under section 4.15 of the Act, including discussion with interested parties,

(e)   preparation of internal reports on the application,

(f)   preparation and service of notices of the consent authority’s determination of the application,

(g)   the monitoring and reviewing by the Planning Secretary of the practices and procedures followed by consent authorities in dealing with development applications—

(i)   for the purpose of assessing the efficiency and effectiveness of those practices and procedures, and

(ii)   for the purpose of ensuring that those practices and procedures comply with the provisions of the Act and this Regulation,

(h)   the monitoring and reviewing by the Planning Secretary of the provisions of environmental planning instruments—

(i)   that control development, or

(ii)   that are required to be taken into consideration by consent authorities when dealing with development applications,

for the purposes of assessing the effectiveness of those provisions in achieving their intended effect and making recommendations for their improvement,

(i)   (Repealed)

(j)   the online delivery of planning services and information by the Planning Secretary, including—

(i)   the compilation and maintenance of the NSW planning database, and

(ii)   the operation of the NSW planning portal, and

(iii)   the enhancement of the NSW planning database and the NSW planning portal.

Note—

Clause 50(9) provides that a development application is taken not to have been lodged until the fees notified to the applicant by means of the NSW planning portal have been paid.

36. As discussed above, the concept of “lodgement” following the amendments by the Portal Amendment Regulation, mirrored the requirement for making a development application prior to the establishment of a planning portal. The same reasoning applied in respect of the payment of a fee. Thus, as enacted, cl 50 of the 2000 Regulation provided:

50   How must a development application be made?

(1)   A development application:

(a) must contain the information, and be accompanied by the documents, specified in Part 1 of Schedule 1, and

(b)   if the consent authority so requires, must be in the form approved by that authority, and

(c)   must be accompanied by the fee, not exceeding the fee prescribed by Part 15, determined by the consent authority ….

37. If it had been in doubt, the requirement for the payment of a fee as a condition of the making of a development application was a necessary inference from the nature of the services for which the fee was paid. These include consideration of the application to determine whether further information was required, prior to the evaluation of the proposed development under s 4.15 of the Planning Act: cl 246(2)(b).

38. The conclusion that the payment of a fee was an essential condition of the making of a development application was resisted by the applicant on the basis that, in its then form, cl 50(9) referred only to “fees notified to the applicant”. It followed, the submission continued, that until the Council had notified the applicant of the fee payable, no fee was payable and accordingly the application was complete and had been “made”.

39. This reading of the provision ignored both the context in which the provision was to be found and the purpose underlying the provision. Two aspects of the statutory context are significant. First, on one view, the very existence of cl 50(9) was anomalous. It had been recognised for decades, as reflected in Remath Investments, that the payment of the fee was an essential condition for the lodging of a completed development application. However, that requirement was no longer contained in cl 50(1). Secondly, the language of cl 50(9) was not that the application was not lodged until the fee was paid, but that the application “is taken not to have been lodged” until the fee is paid.

40. Each aspect of the language of cl 50 is significant because each is consistent with the practicality that the calculation of the fee will depend upon the Council having available to it full and accurate information as to the nature of the development. That is because the calculation of the fees must be based on a “genuine estimate of the costs associated with” the development. [8] There must be a completed development application before the costs can be estimated and the fee calculated. That practicality was recognised both by the omission from cl 50(1) of the requirement that the fee accompany the development application, and by the apparent acceptance in cl 50(9) that all other steps for a completed development application will have been taken, prior to the notification of the fee, and thus its payment.

    8. 2000 Regulation, cl 255.

41. That understanding is consistent with the language of cl 256 which, before the Portal Amendment Regulation, provided:

256   Determination of fees after development applications have been made

(1)   The determination of a fee to accompany a development application must be made before, or within 14 days after, the application is lodged with the consent authority.

(2)   A determination made after the lodging of a development application has no effect until notice of the determination is given to the applicant.

(3)   A consent authority may refuse to consider a development application for which a fee has been duly determined and notified to the applicant but remains unpaid.

42. After the Portal Amendment Regulation, cl 256 read as follows:

256   Determination of fees for development applications

(1)   The determination of a fee to accompany a development application must be made before, or within 14 days after, the consent authority receives the application.

(2)   A determination has no effect until notice of the determination is given to the applicant by means of the NSW planning portal.

(3)   A consent authority may refuse to consider a development application for which a fee has been duly determined and notified to the applicant but remains unpaid.

43. It followed that the applicant’s submission that a completed application could be made before the fee was determined and notified was correct. The development application had been “made”, in the sense of having been lodged, before the fee was determined and notified. Nevertheless, the lodgment (and therefore the making) were not at that stage complete, because there was a further step to be taken. Nor was it correct to suggest that the obligation to pay the fee did not arise until the fee itself was notified. That would both deny the recognition that the fee could only be determined once a completed application had been lodged and deny the operation of cl 50(9), that the application was taken not to have been lodged until the fee was paid.

44. The applicant further contended that the Council had been in breach of its obligation to give notice of its determination of the fee within 14 days after it had received the application. It is by no means clear that the determination of the fee was therefore invalid or ineffective, but that issue need not be determined because the submission assumed that the completed application had been received prior to 26 November 2021. On the basis that the final request for additional information had not been satisfied until 1 December 2021, the notification issued on 2 December 2021 did not contravene cl 256(1).

43. There was in fact no challenge to the power of the Council to notify a fee, nor to the fee in fact notified (which was promptly paid). It follows that, on the applicant’s construction, the development application had been made (by being lodged) at all stages up to the time at which the fee was notified, following which, it was no longer taken to be lodged, until the fee was paid. This reading would render the process incoherent. A development application cannot be lodged and then unlodged, or made, and then unmade, in this manner. As noted above, the transitional provision envisages an identifiable and singular event, namely the making of the development application.

44. It follows that the development application had not been made until the fee was paid, in accordance with cl 50(9).

45. Finally, the applicant’s reliance on the obligation to pay a fee being inchoate until it was notified of the amount, and therefore not essential to the making of a completed development application, was inconsistent with Remath Investments. When that case was determined, s 77 of the Planning Act provided, with respect to the making of a development application, that it “be accompanied by such fee determined by the consent authority (not exceeding the maximum amount, if any, prescribed in relation thereto) or, where a fee is prescribed, by that prescribed fee”: s 76(3)(e). The reasoning of Stein JA set out above expressly referred to the fact that the application was required to be accompanied by the fee, but that substantial compliance with that requirement “may be satisfied by the later accompaniment of the required document … or the fee”. [9] Consistently with that reading, there was no substantial compliance until the fee had been paid. The fact that the fee had to be “determined by the consent authority” was not seen as a qualification of the essentiality of the condition. Subsequent changes to the manner of making a development application, and the language in which various preconditions were identified, do not warrant a different conclusion with respect to the provisions under the 2000 Regulation. There was no suggestion that Remath Investments should be revisited or that it was wrong. It is not distinguishable, and the reasoning in it should be followed.

1. Provision of documents

   9. Remath Investments at [14]; see also Fitzgerald JA at [38] and [47].

48. Much of the oral argument in this Court turned on whether the development application as originally lodged by the applicant was in fact accompanied by the necessary documents, sufficient to satisfy Sch 1, cl 2(1)(a)-(d), to the 2000 Regulation. In particular, there was a dispute as to whether the documents provided by the applicant initially included “an A4 plan of the building that indicates its height and external configuration, as erected, in relation to its site”, in accordance with cl 2(1)(d).

49. It is not strictly necessary to determine this issue, given that, for each of the independent reasons already given, the development application had not been “made” prior to the commencement of the Housing SEPP. However, because the applicant was critical of the reasoning of the primary judge in relation to this issue, it is appropriate to say why that reasoning was not legally erroneous.

50. The impugned reasoning appeared at [59] and [60] of the judgment, but it is helpful to set out the two preceding paragraphs to explain the context:

“57 It is clear that the Council did not regard the plans in Exhibits A and B as satisfying the requirement of Sch 1, cl 2(d) of the 2000 Regulation. That is evident from the exchange between a council officer and Mr Martinez, as is set out in Exhibit D. It is clear that … the plans in Exhibit 2, uploaded to the Portal on 2 December 2021, were accepted by the Council as satisfying these provisions. The two plans that comprise Exhibit 2 which were uploaded on that date more precisely satisfy (by the inclusion of the full suite of elevations of the whole of the Company's development on Plan DA501 as well as a site plan, DA500) … [t]he requirements of Sch 1, cl 2(d) of the 2000 Regulation.

58 Provision of Exhibit 2 triggered, from the Council's perspective, the obligation pursuant to cl 256(1) of the 2000 Regulation to notify the Company of the quantum of the necessary development application fee. Such determination being made within the 14 days after the Council considered that it had “received” the entirety of what was needed to comprise the Company's development application (to use the word in cl 256 of the 2000 Regulation).

59   The position adopted by the Council with respect to plans that were capable of satisfying the requirements of Sch 1, cl 2(d) of the 2000 Regulation are clearly those uploaded to the Portal on 1 December 2021. The plans in Exhibits A and B were not of a nature that could be accepted as meeting the description of what was required by Sch 1, cl 2(d), in particular as Exhibit B, comprised a series of plans, including various elevations of a number of the separate buildings for which consent was sought to be erected on the site.

60   It is clear that the notification requirements in cl 56(2)(b) particularly, and, by inference, cl 77(1)(b)(ii) and (2)(e), in combination, demands the availability of such information in a concise visual form as required by the schedule to enable satisfaction of cl 56(2)(b).” (Emphasis added.)

51. The first criticism of the reasoning in [59] was that the judge had not determined for himself whether the relevant documents complied with Sch 1, cl 2(d), but had accepted the proposition that the Council had determined that they did not, until further documents were uploaded to the portal on 1 December 2021. Whether or not they complied was, the applicant submitted, a jurisdictional fact which the judge needed to determine for himself.

52. The use of the term “jurisdictional fact” led to a degree of confusion in the presentation of the case in this Court. It was not apt to apply the term to the issues before the primary judge. His function, in hearing an appeal from the refusal (or deemed refusal) of a development application, was to make the decision which should have been made by the consent authority. [10] There is no doubt that the Council (and therefore the primary judge) had “jurisdiction” to determine if and when the development application was “made”. One reason why it was necessary for the Council (and the primary judge) to answer that question was to enable it to apply the correct version of the SEPP. One issue in exercising that function, to which the submissions were properly directed, was, at least in principle, in determining whether “substantial compliance” with the requirements of the Regulation was sufficient, or whether strict compliance was necessary.

    10. Planning Act, s 8.14(1).

53. As the applicant accepted in written submissions, the issue as to when the development application was made involved both (i) the proper construction of the legislative scheme and (ii) a finding of fact as to when the applicant complied with the requirements. There was no doubt that the first matter, the proper construction of the legislative scheme, could (and probably did) involve a question of law; the real issue was whether the factual determination involved a question of law which could be the subject of an appeal. The applicant submitted that the primary judge had erred in law in addressing the factual issue because he had asked the wrong question, namely whether the Council had been satisfied that the development application had not been made by 26 November 2021. To ask the question in that way, the applicant contended, was to mistake the nature of the Class 1 jurisdiction as involving something equivalent to the Class 4 judicial review jurisdiction, rather than the merit review required under Class 1. That is, the judge erred in law in failing to determine for himself whether the development application had been made by the critical date.

54. For reasons which will be addressed shortly, the judge did not make that mistake. However, the concept of “jurisdictional fact” provided a basis upon which the applicant could invite this Court, exercising a jurisdiction by way of appeal limited to a question of law, being analogous to judicial review, to determine for itself whether the application had been made by the critical date. The alternative view would be that the relevant “jurisdictional fact” was the opinion of the consent authority which, in this case, was that of the primary judge exercising the functions otherwise conferred on the Council as the consent authority. In proceedings by way of judicial review, it would be necessary to establish an error of law in the formation of the relevant opinion, which might include wrongly construing the statutory test and making a legally unreasonable decision. As explained by Latham CJ in The King v Connell; Ex parte Hetton Bellbird Collieries Ltd:[11]

“Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist.”

11. (1944) 69 CLR 407 at 430; [1944] HCA 42.

55. Properly understood, the applicant’s case on this matter raised three separate issues, namely:

1. was the statutory criterion satisfied by a standard of substantial compliance;

2. was the statutory criterion the existence of a fact, or the state of satisfaction of the consent authority as to the fact; and

3. in either case, was an error of law established in this Court?

56. The answers to these questions, as explained below, are (i) substantial compliance was sufficient; (ii) the statutory criterion was the state of satisfaction of the consent authority; and (iii) it was not established that the determination of the primary judge was based upon a misunderstanding of the statutory criterion, nor that it was legally unreasonable.

57. As to (i), neither the proposed grounds of appeal, nor the applicant’s submissions, suggested that the judge had erred by failing to adopt a substantial compliance standard. Indeed, as will be noted below, there was a challenge to the fact that the judge considered whether there had been compliance with a requirement of Sch 1, cl 2(d) of the 2000 Regulation by having regard to the purpose of providing a document in a particular form. As the respondent noted, the reference to fulfilment of an identified purpose was an aspect of considering whether there had been substantial compliance. [12]

    12. CA Tcpt, 11/08/23, p 36(24).

58. As to (ii), the applicant contended that the relevant statutory criterion was the objective existence of the fact, but the primary judge had directed his consideration only to the state of satisfaction of the Council as to the fact. The applicant submitted that the judge was required to determine for himself whether the fact existed; that is, whether the documents filed prior to 26 November 2021 complied with the requirements of Sch 1, cl 2(d).

59. With respect to the criterion, the applicant was correct. In exercising the Class 1 jurisdiction of the Land and Environment Court, the primary judge was obliged to determine for himself whether the statutory criterion had been satisfied by the relevant date. However, that does not answer the question as to whether the criterion was the objective fact, or the state of satisfaction reached by the consent authority as to that fact. That distinction was not one which was relevant for the primary judge: it is, however, one which could be relevant in this Court hearing an appeal on a question of law. Accordingly, the issue should be addressed.

60. Whether compliance with the Planning Act and the 2000 Regulation was to be determined by the consent authority, or by a court exercising a judicial review function, was a matter of statutory interpretation. [13] As stated in the joint reasons in Project Blue Sky:

“91   An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.”

13. Buck v Bavone (1976) 135 CLR 110 at 118-119 (Gibbs J); [1976] HCA 24; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] (McHugh, Gummow, Kirby and Hayne JJ).

61. The statement of services for which the fee was payable recognised that it was the Council’s function to consider “the application for the purpose of determining whether any further information is required in relation to the proposed development”: cl 246A(2)(b). That function was not conferred on the Court. Given the consequences of holding void or legally ineffectual a consent which is not in its terms impeachable, because a person with standing complains that the application was deficient, would be a serious matter. That an objector is given an express right of appeal only in respect of a designated development, and then only from the “determination”, and not from the application, militates against such a conclusion. [14] The applicant failed to establish that the question whether the documentation supplied prior to 26 November 2021 complied with the statutory regime could only be determined by a judge exercising a judicial review function.

    14. Planning Act, Pt 8, Div 8.3, and s 8.8.

62. Reference was made by both parties to the reasoning of the High Court in Forrest & Forrest Pty Ltd v Wilson,[15] although the applicant acknowledged that this Court had declined to apply it in relation to an aspect of the Planning Act dealing with the need for consent of an owner to a development application in Al Maha Pty Ltd v Huajun Investments Pty Ltd. [16] The provision under consideration in Forrest was s 74 of the Mining Act 1978 (WA), which required that an application for a mining lease “shall be accompanied by … a statement in accordance with subsection (1a) and a mineralisation report …”. The joint reasons noted:

“36   A few months after the applications were lodged, a mineralisation report for each application was lodged. It does not appear that mining operations statements were ever lodged.”

15. (2017) 262 CLR 510; [2017] HCA 30 (Kiefel CJ, Bell, Gageler and Keane JJ).

16. [2018] NSWCA 245 at [99]-[101] (Preston CJ of LEC, Leeming JA agreeing); see also Roads and Maritime Services v Desane Properties Pty Ltd (2018) 98 NSWLR 820; [2018] NSWCA 196 at [203], [210], [211].

63. In overturning the decisions of the single judge and the Court of Appeal of Western Australia, the High Court held that the mining warden had no authority to recommend the grant of a mining lease in circumstances where there had not been strict compliance with the requirements of the legislation. Two factors were important in upholding that conclusion. First, the legislation itself made express provision for the circumstances in which the obligation to provide documentation could be relaxed; there was no such provision with respect to the documents referred to in [36]. Secondly, the constructional choice as to whether a failure to comply with the statutory requirements would invalidate the exercise of the statutory function, to be determined in accordance with the principles stated in Project Blue Sky … was governed by the consideration that the “statutory regime confers power on the executive government of a State to grant exclusive rights to exploit the resources of the State”. [17] In relation to such a matter, the Court held that longstanding authority mandated “compliance with the requirements of the regime as essential to the making of a valid grant”. [18]

    17. Forrest at [64].

    18. Ibid.

64. The reasoning in Forrest does not assist the applicant. First, Forrest was concerned with a failure by an applicant to comply with the statutory requirements, a failure which had been disregarded by the mining warden. The present case involved a Council which was mindful of the need to comply with the statutory requirements. Secondly, there is a marked difference between a decision disposing of interests in the resources of a State, and a decision which permits a development on private land which would not otherwise be permitted. Thirdly, the question of compliance in Forrest involved no evaluative judgment as to whether a particular document constituted a relevant “statement” or a “mineralisation report”, but rather the total absence of the mandatory material at the relevant time. This case involved the evaluation of the content of the documentation supplied. Fourthly, the High Court observed that the Court of Appeal’s focus on the “delays, cost and other prejudice” experienced by the applicants for the mining lease, disregarded the fact that those delays and costs resulted from their own non-compliance with the Act, and “overlooked the consideration that non-observance of the requirements of the regime governing the grant of mining leases was apt to disadvantage both the public interest and individuals in ways that the Act did not intend”. [19] No similar concern arose in the present case.

    19. Forrest at [82].

65. Much was made by the applicant in oral submissions of the difficulties involved in complying with the requirement for “an A4 plan” (however that might appear on the portal) with respect to a major development involving multiple large buildings. However, recognising that difficulty tended to render less likely a conclusion that it was for a reviewing court to determine the factual issue for itself. It follows that this Court’s role in reviewing for legal error was limited to reviewing the opinion of the primary judge for illegality, including legal unreasonableness.

66. As to (iii), it may be accepted that, at least on one reading, the judge considered that whether the material provided complied with the requirements of the Act and Regulation was a matter to be determined by the Council. On that approach, the issue was whether the documents were capable of satisfying the statutory criterion, or, where the decision of the consent authority was in the negative, whether the documents were capable only of meeting the criterion. Again on that approach, the test of capacity adopted by the judge was too high: expressed in judicial review terms, the appropriate test would have been whether the decision of the consent authority was legally unreasonable.

67. However, the judge also expressly stated that the documents were not “of a nature that could be accepted” by the Council. That was an evaluative judgment as to the objective fact, namely, that it was not open on the evidence before the Court to find that the criterion had been satisfied. [20] That is a finding, not merely that the documents filed prior to 26 November 2021 did not satisfy the statutory criterion, but that they could not. It is a finding as to the objective fact.

    20. See italicised passages in [59] and [60] set out at [50*] above.

68. A further basis upon which the primary judge was criticised by the applicant was that (at [60]) he had had regard to the notification requirements in cl 56(2)(b) which, he stated, demanded the availability of the prescribed information in “a concise visual form”. Consistently with the approach emphasised by the majority in Forrest, the application of Project Blue Sky principles requires that regard be had both to the consequences of a finding of invalidity in relation to an applicant and, importantly, to the public purposes which the legislation was designed to promote. [21] The judge was correct to focus on those public purposes in considering the need for compliance with the language of the Regulation. While it was common ground that the “plan” required by Sch 1, cl 2(1)(d) was not required to be on A4 paper, a matter rendered obsolete by the lodgement requirements in electronic form, par (d) expressly referred to cl 56 of the 2000 Regulation which identified, in cl 56(2)(b), the part of a development application to be made publicly available. The criticism of the primary judge for expressly referring to that cross-reference in order to identify the purpose of the requirement, was misplaced.

    21. See further, M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, Lawbook Co, 2022) at [7.260].

63. The judge did not err in law in determining that the documents filed before 26 November 2021 did not comply with the requirements of Sch 1, cl 2(1)(d) to the 2000 Regulation, nor in being guided by the purpose of the requirements.

Conclusion

70. No error on a question of law being made good, the answer given by the primary judge to the separate question must be upheld. Accordingly, the appeal must be dismissed; the applicant must pay the respondent’s costs in this Court. The orders proposed by Preston CJ of LEC should be made.

71. PRESTON CJ of LEC: I am of the view that leave to appeal should be granted, but the appeal should be dismissed.

The nature and outcome of the application for leave to appeal and the appeal

72. At the core of this application for leave to appeal against a decision of a judge of the Land and Environment Court is a dispute about when a development application under the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) was made. The time of making the development application matters.

73. The applicability of an environmental planning instrument, State Environmental Planning Policy (Housing) 2021 (the 2021 SEPP), depends on when the development application was made. The 2021 SEPP repealed and replaced the State Environmental Planning Policy (Affordable Rental Housing) 2009 (the 2009 SEPP). The 2021 SEPP has different standards and requirements to those of the 2009 SEPP, which would restrict the applicant’s proposed mixed use development of a site at 319-333 Taren Point Road, Caringbah (the site).

74. The 2021 SEPP has a savings provision. Clause 2(1)(a) of Sch 7A provides that the 2021 SEPP does not apply to a development application “made, but not yet determined, on or before the commencement date” of the 2021 SEPP. The commencement date was 26 November 2021.

75. The question in issue in the court below was whether the applicant’s development application seeking consent for the mixed use development at the site was “made” on or before 26 November 2021. The applicant lodged the development application for consent to carry out the development on the NSW planning portal on 22 October 2021. That development application was accompanied by certain information and documents.

76. The issue was that the development application was not accompanied by two documents. The first was “an A4 plan of the building that indicates its height and external configurations, as erected, in relation to its site”. That A4 plan was one of the documents that cl 50(1)(c) and cl 2(1)(d) of Sch 1 to the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation 2000) specified must accompany a development application. Other plans of the buildings to be erected on the site (the proposed development comprised four buildings), from which the heights and external configurations of the buildings could be derived, did accompany the development application. But there was no single A4 plan of the buildings that indicated their heights and external configurations.

77. The consent authority, Sutherland Shire Council (the Council), issued requests for additional information to the applicant on the NSW planning portal, first on 23 November 2021 and again on 29 November 2021. The applicant issued a response to those requests on the NSW planning portal on 26 November 2021 and 1 December 2021 respectively. Although the applicant did supply further plans, it never supplied a single A4 plan of the buildings that indicated their heights and external configurations.

78. The second document that did not accompany the development application was payment (or a record of payment) of the fee for the development application. The EPA Regulation 2000 provides a process for the consent authority to determine and notify to the applicant the fee “to accompany a development application”: cl 256(1) and (2) of the EPA Regulation 2000.

79. In this case, the Council, as the consent authority, did not determine and notify the applicant of the fee to accompany the applicant’s development application until 2 December 2021. The applicant paid the fee, which had been duly determined and notified the applicant, on 9 December 2021.

80. The upshot was that two documents that the EPA Regulation 2000 required to accompany the development application, the A4 plan of the building and the payment of the fee, did not accompany the development application either when first lodged on the NSW planning portal on 22 October 2021 or on or before 26 November 2021, being the commencement date of the 2021 SEPP.

81. The Council contended in the court below that this had the consequence that the applicant’s development application was not “made” on or before the commencement date of 26 November 2021, so that the 2021 SEPP and not the saved 2009 SEPP applied to the applicant’s development application.

82. The applicant contended the converse. The applicant contended that the development application was “made” when it was lodged on the NSW planning portal on 22 October 2022 and the fact that the two documents (the A4 plan of the building and the payment of the fee) did not accompany the development application, either when it was lodged on that date or subsequently, did not cause the development application not to be made.

83. In the court below, Moore J, answering a separate question, determined that the applicant’s development application was not made on or before 26 November 2021, so that the 2021 SEPP and not the 2009 SEPP applied to the development application. Moore J found that, as at 26 November 2021, the development application was not accompanied by either the A4 plan of the building required by cl 50(1)(c) and cl 2(1)(d) of Sch 1 of the EPA Regulation 2000 (at [59], [60], [67], [68], [71]) or payment of a fee duly determined and notified to the applicant (at [61]-[64], [73]).

84. The applicant seeks leave to appeal from Moore J’s determination of the separate question. The application for leave to appeal and any appeal, if leave were to be granted, were heard together by this Court.

85. For reasons I will shortly give, I consider that although leave to appeal should be granted, the appeal against Moore J’s decision should be dismissed. On a proper construction of the statutory provisions governing the making of a development application, the applicant’s development application was not “made” on or before the commencement date of the 2021 SEPP of 26 November 2021. Accordingly, Moore J was correct in finding that the 2021 SEPP and not the 2009 SEPP applied to the applicant’s development application.

86. I will structure my judgment as follows. I will first explain the statutory scheme for making development applications. This will resolve the competing interpretations of the statutory scheme advanced by the parties. I will secondly dispose of the applicant’s foreshadowed grounds of appeal, if leave to appeal were to be granted. As I will explain, the applicant has not established that the primary judge erred in law in the ways alleged. In any event, his conclusion that the development application was not made by 26 November 2021 is correct and supportable on the proper construction of the statutory scheme for making development applications. Any appeal should therefore be dismissed. Thirdly, I will address the application for leave to appeal. I consider that, at the least, the applicant has advanced good reason for leave to be granted in that the question of when a development application is made has not been determined by this Court since the statutory scheme has been amended to provide for development applications to be lodged on the NSW planning portal.

The statutory scheme for making development applications

87. Section 4.12(1) of the EPA Act states simply that “a person may, subject to the regulations, apply to a consent authority for consent to carry out development”. The relevant regulation in force at the time the applicant made its development application in 2021 was the EPA Regulation 2000. Clause 50 of the EPA Regulation 2000 prescribed how a development application must be made. Clause 50(1) prescribed the form and manner of making a development application for consent to carry out development other than State significant development:

“(1)    A development application, other than an application for State significant development, must--

(a)    be in the form that is approved by the Planning Secretary and made available on the NSW planning portal, and

(b)    contain all of the information that is specified in the approved form or required by the Act and this Regulation, and

(c) be accompanied by the information and documents that are specified in Part 1 of Schedule 1 or required by the Act and this Regulation, and

(d)    be lodged on the NSW planning portal.”

88. Paragraphs (a) to (c) prescribe the form requirements for the development application that is to be made – the development application must be in the approved form, contain the information required and be accompanied by the information and documents required. A development application that does not satisfy these form requirements is not a development application for the purposes of the EPA Act and EPA Regulation 2000.

89. Paragraph (d) prescribes the manner requirement for how a development application meeting the form requirements is to be made. This is by lodging on the NSW planning portal the development application and any available accompanying information and documents required.

90. In issue in this case are the form requirements in cl 50(1)(c). The applicant’s development application, which the applicant lodged on the NSW planning portal on 22 October 2021, was not accompanied by two types of “information and documents that are specified in Part 1 of Schedule 1 or required by the Act and this Regulation”.

91. The first type of information and documents were those specified in cl 2(1)(d) of Part 1 of Schedule 1 of the EPA Regulation 2000. Clause 2(1)(d) provided that:

“(1)    A development application must be accompanied by the following documents-

…

(d)    in the case of development that involves the erection of a building, an A4 plan of the building that indicates its height and external configuration, as erected, in relation to its site (as referred to in clause 56 of this Regulation), …”

92. Clause 2(1)(d) of Sch 1 cross-refers to cl 56 of the EPA Regulation 2000. That clause requires specified extracts of a development application relating to the erection of a building to be made publicly available on the NSW planning portal. The purpose of the cross-reference to cl 56 is to identify the nature of the A4 plan of the building that is required by cl 50(1)(c) and cl 2(1)(d) of Sch 1 to the EPA Regulation 2000 to accompany the development application. This plan is described in cl 56(2)(b) to be “a plan of the building that indicates its height and external configuration, as erected, in relation to the site on which it is to be erected, if relevant for that particular development”.

93. The applicant’s proposed development involved the erection of four buildings on the site. Although the applicant’s development application included a series of plans of the buildings (apparently around 50 plans), the development application was not accompanied by “an A4 plan” of the buildings that indicated their heights and external configurations, as erected, in relation to their site as referred to in cl 2(1)(d) of Sch 1 of the EPA Regulation 2000. In the court below, there was an A3 site plan (Exhibit A) and five A3 sheets of elevations (Exhibit B), which were extracts from the full set of around 50 plans.

94. The A4 plan of the building required by cl 2(1)(d) of Sch 1 did not accompany the development application when it was lodged on the NSW planning portal on 22 October 2021. Although in response to the Council’s request for further information and documents, the applicant lodged further plans, none of these further plans met the description of the A4 plan of the building required by cl 2(1)(d) of Sch 1 and cl 56(2)(b) of the EPA Regulation 2000. The requirement that such an A4 plan accompany the development application remained unmet as at the commencement date of the 2021 SEPP of 26 November 2021.

95. The second type of information and documents that did not accompany the applicant’s development application was the information and document required by cl 256 of the EPA Regulation 2000. This is payment (or record of payment) of the fee to accompany the development application. Division 1 of Part 15 of the EPA Regulation 2000 deals with the fees for development applications, other than for State significant development.

96. Clause 246A (2) identifies the services covered by the fee for a development application. Clause 246B provides for how the maximum fee for development involving, inter alia, the erection of a building is to be calculated. Clause 255 provides that a fee for development involving the erection of a building is to be determined by reference to a genuine estimate of the costs associated with the construction of the building and the costs associated with the preparation of the building for the purpose for which it is to be used.

97. Clause 256 then provides for the consent authority to make a determination of the fee “to accompany the development application” and to notify the applicant of the determination. Clause 256 provides:

“256    Determination of fees for development applications

(1)    The determination of a fee to accompany a development application must be made before, or within 14 days after, the application is lodged on the NSW planning portal.

(2)    A determination has no effect until notice of the determination is given to the applicant by means of the NSW planning portal.

(3)    A consent authority may refuse to consider a development application for which a fee has been duly determined and notified to the applicant but remains unpaid.”

98. Construing the text of cl 256 in the context of Division 1, cl 256 imposes a requirement that payment of a fee, which has been duly determined by the consent authority and notified to the applicant, “accompany a development application”. The payment of a duly determined and notified fee thus falls within the category of “information and documents that are specified in Part 1 of Schedule 1 or required by the Act and this Regulation”, which cl 50(1)(c) of the EPA Regulation 2000 requires a development application to be accompanied by.

99. In this case, the applicant’s development application lodged on the NSW planning portal on 22 October 2021 was not accompanied by payment of a fee for the development application. At that time, the Council had not determined the fee to accompany the development application. The Council did not do so until 2 December 2021, when the Council gave notice to the applicant by means of the NSW planning portal of the determination of the fee to accompany the applicant’s development application. The applicant paid that duly determined and notified fee on 9 December 2021. Both of these dates of 2 and 9 December, however, are after the commencement date of the 2021 SEPP of 26 November 2021. Hence, the requirement that payment of the fee accompany the development application was unmet as at 26 November 2021.

100. The consequence of the applicant’s development application not meeting these two form requirements that the development application be accompanied by the A4 plan of the building and the payment of the fee was that the development application was incomplete as at 26 November 2021.

101. An incomplete development application is not invalid. As Spigelman CJ observed in Currey v Sutherland Shire Council (2003) 129 LGERA 223; [2003] NSWCA 300 at [35], there is “very little, if any, scope in this legislative scheme [for applying to a consent authority for consent to carry out development] for the concept of a ‘valid’ application.”

102. Similarly, in Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312; [2000] NSWCA 364, Stein JA observed that a development application that is not accompanied by the information and documents required by the EPA Act and regulations is not “invalid or void” (at [14]), but it is “ineffective and incomplete” (at [18]). Equally, Fitzgerald JA described a development application, in respect of which there has not been substantial compliance with the statutory requirements for the development application to be accompanied by specified information and documents, to be “incomplete and ineffective” until there is substantial compliance with the requirements: at [47].

103. An incomplete development application is ineffective in that it does not have the “legal effect” of being a development application for the purposes of this statutory scheme: see Currey v Sutherland Shire Council at [34]. An incomplete development application does not have the legal effect to engage the statutory power of the consent authority to determine a development application by granting consent to the application. That power is currently in s 4.16(1) of the EPA Act.

104. This lack of legal effect of an incomplete development application explains the various decisions of this Court holding that a consent authority has no power to grant consent to a development application that does not comply with the statutory requirements for making a development application.

105. First, there are the decisions concerning a development application seeking consent to carry out development that is prohibited by an environmental planning instrument applying to the land to be developed. Such a development application has been held to be of no legal effect – it is not an application in terms of the EPA Act and the consent authority has no power to grant consent to it: Chambers v Maclean Shire Council (2003) 126 LGERA 7; [2003] NSWCA 100 at [38]; Currey v Sutherland Shire Council at [34]. But if the law were to change, such as by an environmental planning instrument making the development for which consent is sought in the development application, permissible with consent rather than prohibited, so would the legal efficacy of the development application: Currey v Sutherland Shire Council at [34].

106. Secondly, there are the decisions concerning development applications that are required to be accompanied by a particular type of environmental impact assessment report.

107. A development application seeking consent to carry out designated development is required to be accompanied by an environmental impact statement: s 4.12(8) of the EPA Act. A development application for designated development which is not accompanied by an environmental impact statement, will not have the legal effect of engaging the power of the consent authority to grant consent to the development application. The requirement for an environmental impact statement to accompany a development application for designated development is an essential condition for the exercise of the power to grant consent to the development application: Botany Bay City Council v Remath Investments No 6 Pty Ltd at [14]-[18], [47]-[50]; McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 at [189]-[191].

108. Under the former Endangered Fauna (Interim Protection) Act 1991 (NSW) and the EPA Act at that time, a development application seeking consent to carry out development which was likely to significantly affect the environment of protected fauna was required to be accompanied by a fauna impact statement; see s 77(3)(d1) of the EPA Act at that time. Compliance with this mandatory form requirement for such a development application was held to be a “condition precedent to any consideration of the application” by the consent authority and hence “a condition of validity” of any decision to grant consent to the development application: Helman v Byron Shire Council (1995) 87 LGERA 349 at 358, 359.

109. The same conclusion was drawn regarding the replacement Threatened Species Conservation Act 1995 (NSW) and the EPA Act at that time. A development application seeking consent to carry out development likely to significantly affect threatened species, populations or ecological communities was required to be accompanied by a species impact statement: s 77(3)(d) of the EPA at the time. A development application for such development, which was not accompanied by a species impact statement, did not have the legal effect to engage the power of the consent authority to determine the development application by the grant of consent. A species impact statement, when required to accompany a development application, was “‘an essential preliminary’ or ‘essential condition’ to a valid decision-making process”: Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 at [106].

98. Similarly, a development application under the current Biodiversity Conservation Act 2016 (NSW) and the current EPA Act, seeking consent to carry out development likely to significantly affect threatened species is required to be accompanied by a Biodiversity Development Assessment Report: s 7.7(2) of the Biodiversity Conservation Act. If a Biodiversity Development Assessment Report is required to, but does not, accompany a development application, the “consent authority will have no power to grant development consent to the application”: Planners North v Ballina Shire Council (2021) 251 LGERA 309; [2021] NSWLEC 120 at [102].

99. Thirdly, there are the decisions concerning the requirement for owner’s consent to the making of a development application: see cl 49(1) of the EPA Regulation 2000. The giving of owner’s consent to the making of a development application with respect to the owner’s land is an essential prerequisite to the exercise of the consent authority’s power to grant consent to the development application: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [95], [97], [174]. A consent granted to a development application related to land for which the owner of the land has not given its consent in writing will be invalid: Al Maha Pty Ltd v Huajun Investments Pty Ltd at [9], [174].

100. Fourthly, there is the decision in Botany Bay City Council v Remath Investments No 6 Pty Ltd concerning the payment of the fee to accompany the development application. At that time, the relevant statutory provision, s 77(3)(c) of the EPA Act, required a development application to “be accompanied by such fee determined by the consent authority (not exceeding the maximum amount, if any, prescribed in relation thereto) or where a fee is prescribed, by that prescribed fee”. Stein JA, with whom Handley JA agreed, held at [13] that:

“I see no warrant for splitting the requirements of a development application between it being made in the prescribed form and the documents necessary to accompany it, as well as the payment of the fee. I cannot accept that the latter requirements may be hived off so as not to be requirements for the making of the development application.”

113. The consequence was that until the required fee was paid, the development application was “ineffective and incomplete” and had not been “made”: at [18].

114. Each of these categories of decisions demonstrates that a development application that is not accompanied by the information and documents required by the EPA Act and EPA Regulation 2000 and the payment of the fee required by the EPA Regulation 2000 is incomplete and ineffective to engage the power of the consent authority to grant consent to the development application.

115. This means that the development application has not been “made” for the purpose of a savings provision such as cl 2(1)(a) of Sch 7A of the 2021 SEPP. The word “made” in the savings provision means “made” in accordance with the EPA Act and the regulations applying at the time, in this case the EPA Regulation 2000. To be made in accordance with the EPA Act and EPA Regulation 2000, the development application must comply substantially with the requirements of the Act and Regulation for the making of a development application: Botany Bay City Council v Remath Investments No 6 Pty Ltd at [16], [18], [50].

116. In the present case, the applicable form requirements are that the development application be accompanied by the information and documents that are specified in Part 1 of Schedule 1 to the EPA Regulation 2000 (relevantly, the A4 plan of the building indicating the height and external configuration required by cl 2(1)(d) of Sch 1) and the information and documents required by the EPA Regulation 2000 (relevantly, the payment of the fee to accompany the development application required by cl 256).

117. A development application in respect of which there has not been “substantial compliance” with these requirements is incomplete and ineffective. Only when there is substantial compliance with the requirements will the development application be completely and effectively made: Botany Bay City Council v Remath Investments No 6 Pty Ltd at [18], [47].

118. This conclusion regarding when a development application is “made” for the purpose of a savings provision such as cl 2(1)(a) of Sch 7A to the 2021 SEPP is confirmed by the balance of the savings provision which refers to when a development application is “determined”. The savings provision saves a development application that has been “made, but not yet determined”. The decisions to which I have earlier referred hold that an incomplete development application is ineffective to engage the power of the consent authority to determine the development application by granting consent. The wording of the savings provision presupposes that there is a complete and effective development application that can be “determined” by the grant of consent. The consent authority would have no power to determine by the grant of consent a development application that is incomplete and ineffective. Thus, both the word “made” and the word “determined” demand that the development application be complete and effective in order to be an application in terms of the EPA Act.

119. This conclusion that an incomplete and ineffective development application has not been “made” for the purposes of the savings provision is corroborated by the various statutory provisions conferring power on the consent authority with respect to incomplete development applications.

120. The first power, in cl 51(1) of the EPA Regulation 2000, is for a consent authority to reject a development application which is not accompanied by the required information or documents:

“51    Rejection of development applications

(1)     A consent authority may reject a development application within 14 days after receiving it if—

…

(b) the application does not contain all of the information that is specified in the approved form or required by the Act or this Regulation, or is not accompanied by all of the documents and information specified in Part 1 of Schedule 1 or required by the Act or this Regulation, …”

121. By this power, the consent authority could reject an incomplete development application that was not accompanied by all of the documents and information specified in Part 1 of Sch 1 of the EPA Regulation 2000 (including the A4 plan of the building required by cl 2(1)(d) of Sch 1) or required by the EPA Regulation 2000 (including payment of the fee required by cl 256).

122. If the consent authority does reject a development application on this ground, the application “is taken for the purposes of the Act never to have been made”: cl 51(3). That deeming provision is necessary to make clear that an incomplete development application that is rejected is taken not to have been made. But the deeming provision does not have the converse effect: an incomplete development application that is not rejected is taken to have been made. A development application that does not comply with the form requirements in cl 50(1) of the EPA Regulation 2000, in this case cl 50(1)(c), is incomplete and ineffective regardless of whether the consent authority exercises the power under cl 51(1) to reject the development application.

123. The second power, in cl 54(1) of the EPA Regulation 2000, is for a consent authority to request the applicant for development consent to provide it with such additional information about the proposed development as it considers necessary to its proper consideration of the application. On one construction, this power might be seen to be available only where a complete and effective development application has been made. I do not find it necessary to decide whether the power is so constrained. For the purposes of this case, the existence of a power to request additional information about the development for which consent is sought is uninformative on the question of whether an incomplete and ineffective development application has been “made” for the purpose of a savings provision.

124. The third power is cl 256(3) of the EPA Regulation 2000. This provides that a consent authority may refuse to consider a development application for which a fee has been duly determined and notified to the applicant but remains unpaid. This power is supplemented by the deeming provision in cl 50(9) of the EPA Regulation. That provides that: “A development application is taken not to have been lodged until the fees notified to the applicant by means of the NSW planning portal have been paid.”

125. These two provisions concern the consequences of non-payment of fees for development applications. The deeming provision in cl 50(9) operates to deem a development application, although in fact lodged on the NSW planning portal under cl 50(1)(d), not to have been lodged until the fees notified to the applicant by means of the NSW planning portal have been paid.

126. The consent authority has power under s 256(1) to determine the fee to accompany a development application and under s 256(2) to give notice to the applicant by means of the NSW planning portal of that determination. Upon such notice being given, the applicant can pay the fee notified to the applicant. Clause 50(9) operates to deem the development application not to have been lodged until the applicant pays the fee notified to it. That operation of cl 50(9) explains the power in cl 256(3) of a consent authority to refuse to consider a development application for which a fee has been duly determined and notified to the applicant while the fee remains unpaid.

127. The payment by the applicant of the notified fee will have two consequences: first, the deeming provision in cl 50(9) ceases to operate to deem the development application not to have been lodged, and secondly, the consent authority may no longer refuse to consider the development application.

128. There is also another consequence. When the fee notified to the applicant is paid, the consent authority is obliged to notify the applicant, by means of the NSW planning portal, that the development application has been lodged: cl 50(8) of the EPA Regulation 2000. The date of lodgement notified will be the date on which the fee notified to the applicant has been paid. This obligation to notify the applicant that the development application has been lodged is necessary to advise the applicant that the process of consideration of the development application has commenced and when the process commenced. The date of lodgement of a development application has legal consequences, including starting the time period for measuring when the development application is taken to have been refused so as to entitle the applicant to appeal to the Land and Environment Court against the deemed refusal: see cl 113(1) and (2) of the EPA Regulation 2000.

129. 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.

130. The upshot in this case is that the applicant’s development application was incomplete and ineffective by reason of it not having been accompanied by the A4 plan of the buildings required by cl 2(1)(d) of Sch 1 and the payment of the fee required by cl 256 of the EPA Regulation 2000. Substantial compliance with those requirements was capable of being satisfied by the later accompaniment of the required document under cl 2(1)(d) of Sch 1 and payment of the fee under cl 256, but this was not done before the commencement date of the 2021 SEPP of 26 November 2021.

131. As a consequence, the development application was not “made” for the purpose of the savings provision by 26 November 2021.

The challenge to the primary judge’s decision

132. The primary judge concluded that the applicant’s development application was not made on or before 26 November 2021 for the purpose of the savings provision of cl 2(1)(a) of Sch 7A to the 2021 SEPP: at [76], [78]. The applicant challenges the primary judge’s conclusion on the five grounds set out in the draft notice of appeal.

133. The first three grounds concern the requirements of cl 50(1)(c) and cl 2(1)(d) of Sch 1 of the EPA Regulation 2000 that the development application be accompanied by “an A4 plan of the building that indicates its height and external configuration, as erected.” The fourth and fifth grounds concern the requirements under cl 256 of the EPA Regulation 2000 for the payment of the fee for the development application.

134. The first ground asserted that the primary judge erred in his interpretation of the provisions of the EPA Regulation 2000 for the making of a development application.

135. The second ground was that the primary judge failed to determine for himself that the provisions of cl 50(1)(c) and cl 2(1)(d) of Sch 1 of the EPA Regulation 2000 for the making of a development application had been complied with on or before 26 November 2021. On one view, that ground might raise an error of fact, rather than law. To address this possibility, the applicant reframed its argument on appeal to be that the primary judge asked himself the wrong question, of whether the Council considered the development application complied with these form requirements for making a development application, rather than determining the issue of compliance for himself.

136. The third ground was that the primary judge erred in failing to determine that these provisions (cl 50(1)(c) and cl 2(1)(d) of the Sch 1 of the EPA Regulation 2000) are satisfied where there is substantial compliance with the provisions. Again, as expressed, this ground might raise an error of fact, rather than law. Again, the applicant reframed the ground on appeal to assert that the primary judge misdirected himself in determining that the plan required by cl 2(1)(d) of Sch 1 was not in a concise visual form as required by cl 256 of the EPA Regulation.

137. The fourth ground was that the primary judge erred in interpreting cl 50(9) of the EPA Regulation 2000 when concluding that it operated as a “barrier to perfection of lodgement” until the development application fee was paid in circumstances where the fee had not been determined or notified in accordance with cl 256 of the EPA Regulation 2000.

138. The fifth ground was that the primary judge erred by concluding that the development application had not been “received” prior to 26 November 2021 for the purpose of cl 256 of the EPA Regulation 2000.

139. I will address briefly each of these grounds.

140. The first ground challenges the primary judge’s interpretation of the statutory provisions for the making of a development application. The primary judge found that compliance with the requirement of cl 50(1)(c) and cl 2(1)(d) of Sch 1 to the EPA Regulation 2000 that a development application be accompanied by the A4 plan of the building referred to in cl 2(1)(d) of Sch 1 and cl 56(2)(b) of the EPA Regulation 2000 was necessary in order for a development application to be made for the purpose of the savings provision. The primary judge found the plans accompanying the development application lodged on the NSW Planning Portal “were not of a nature that could be accepted as meeting the description of what was required by Sch 1, cl 2(1)(d)”: at [59]. The primary judge gave as a reason for this finding that “the notification requirements in cl 56(2)(b) particularly, and, by inference, cl 77(1)(b)(ii) and (2)(e), in combination, demands [sic] the availability of such information in a concise visual form as required by the schedule to enable satisfaction of cl 56(2)(6)”: at [60].

141. The applicant submitted that this finding involved misdirection. Clause 56 of the EPA Regulation 2000 is directed to making specified extracts of a development application publicly available on the NSW planning portal, not to the requirements for making a development application.

142. That submission may be accepted, but it is not to the point. Clause 2(1)(d) of Sch 1 describes the A4 plan of the building that is required to accompany a development application for development that involves the erection of a building by reference to the plan of the building described in cl 56, in particular in cl 56(2)(b), of the EPA Regulation 2000. It was, therefore, proper for the primary judge, in interpreting the document that cl 2(1)(d) of Sch 1 requires to accompany a development application, to refer to cl 56(2)(b). The primary judge found that cl 56(2)(b) demanded that the plan of the building, in indicating its height and external configuration, present “such information in a concise visual form”: at [60]. That supported his finding that the plans that accompanied the applicant’s development application did not meet the description of the A4 plan of the building required by cl 2(1)(d) of the Sch 1 and cl 56(2)(b) of the EPA Regulation 2000.

143. The primary judge did not err in his interpretation of cl 50(1)(c), cl 2(1)(d) of the Sch 1 and cl 56(2)(b) of the EPA Regulation 2000 in this respect. The primary judge did not otherwise err in his interpretation of these provisions and his conclusion that the applicant’s development application, by not being accompanied by the A4 plan of the building required by cl 50(1)(c) and cl 2(1)(d) of Sch 1 to the EPA Regulation 2000, had not been made by 26 November 2021.

144. The second ground was that the primary judge failed to ask and answer the right question of whether the applicant’s development application met the requirements of cl 50(1)(c) and cl 2(1)(d) of Sch 1 of the EPA Regulation 2000, but instead asked and answered the wrong question of whether the Council was satisfied that the development application met those provisions.

145. The primary judge noted in [57] that “the Council did not regard the plans in Exhibits A and B as satisfying the requirements of Sch 1, cl 2(1)(d) of the 2000 Regulation.” The primary judge noted in [59] that the position adopted by the Council with respect to the further plans that were later provided by the applicant in response to the Council’s request for further information, and uploaded to the NSW planning portal on 1 December 2021, was that they “were capable of satisfying the requirements of Sch 1, cl 2(1)(d) of the 2000 Regulation”: at [59]. The primary judge noted that there was “nothing unreasonable in the Council seeking compliance, to its satisfaction, with Sch 1, cl 2(1)(d) of the 2000 Regulation, by requesting from the Company plans which did satisfy those requirements”: at [68].

146. The applicant submitted that the primary judge thereby did not determine for himself whether the documents accompanying the development application met the requirements of cl 50(1)(c) and cl 2(1)(d) of Sch 1 to the EPA Regulation 2000.

147. I reject that submission. The primary judge’s comments about the Council’s view that the plans accompanying the development application did not satisfy the requirements of cl 2(1)(d) of Sch 1 were not dispositive of the primary judge’s decision. The primary judge found for himself that the plans accompanying the development application lodged on the NSW planning portal on 22 October 2021 did not meet the description of what was required by cl 2(1)(d) of Sch 1 to the EPA Regulation 2000: “The plans in Exhibits A and B were not of a nature that could be accepted as meeting the description of what was required by Sch 1, cl 2(d), in particular as Exhibit B, comprised a series of plans, including various elevations of a number of the separate buildings for which consent was sought to be erected on the site”: at [59]. The assertion of error in the second ground is not established.

132. The third ground was that the primary judge erred in not finding that, although the plans of the building accompanying the development application might not have strictly complied with the requirements of cl 50(1)(c) and cl 2(1)(d) of Sch 1 to the EPA Regulation 2000, there was nevertheless substantial compliance with those requirements. That argument was made only with respect to the A4 plan of the building and not the payment of the fee for the development application.

133. The applicant submitted that the primary judge did not apparently rely upon the absence of the single A4 plan of the building to determine whether there was compliance with cl 2(1)(d) of Sch 1 to the EPA Regulation 2000, but instead interpreted the clause as requiring the development application to be accompanied by “such information in a concise visual form”: at [60]. The applicant submitted that in so doing the primary judge misdirected himself as cl 56 of the EPA Regulation 2000 is directed to the different purpose of making specified extracts of a development application publicly available on the NSW planning portal.

134. This ground is not made out. The primary judge referred to the description of the plan of the building required by cl 56(2)(b) of the EPA Regulation 2000 in order to understand the plan of the building that is required by cl 2(1)(d) of Sch 1 to the EPA Regulation 2000 to accompany the development application. That reference to cl 56(2)(b) was necessary as cl 2(1)(d) of Sch 1 expressly incorporates by reference the description of the plan of the building in cl 56.

135. The primary judge drew from the description of the plan of the building in cl 56 that the requirement in cl 2(1)(d) of Sch 1 for “an A4 plan of the building that indicates its height and external configuration, as erected” demands “the availability of such information in a concise visual form”: at [60]. The primary judge found that the series of plans of the buildings (some of which were in Exhibits A and B) “were not of a nature that could be accepted as meeting the description of what was required by Sch 1, cl 2(1)(d), in particular as Exhibit B, comprised a series of plans, including various elevations of a number of the separate buildings for which consent was sought to be erected on the site”: at [59].

136. This was a finding of fact that there was neither compliance nor substantial compliance with the requirements in cl 2(1)(d) of Sch 1: the development application was not accompanied by the required single A4 plan of the building but instead by a series plans of the buildings, none of which were A4 in size. No error of law is revealed by the primary judge’s finding. The third ground is not established.

137. The fourth and fifth grounds concern the requirement for payment of the fee to accompany the development application. The fourth ground is that the primary judge erred in finding that the development application was not made on or before 26 November 2021 by not being accompanied by the payment of the fee for the development application when the Council had not, by that date, duly determined and notified to the applicant the fee that was payable.

138. The applicant submitted the primary judge erred in accepting the Council’s submission that cl 50(9) of the EPA Regulation 2000 created a “barrier to perfection of lodgement” of the development application: at [61]. That provision states that: “A development application is taken not to have been lodged until the fees notified to the applicant by means of the NSW planning portal have been paid”. The applicant submitted that this deeming provision does not operate unless and until the consent authority determines the fee payable under cl 256(1) and notifies the applicant of that determination under s 256(2) of the EPA Regulation 2000. The Council did not do either until 2 December 2021, with the applicant paying the fee on 9 December 2021. Hence, the applicant argued, cl 50(9) did not operate to deem the development application not to have been lodged.

139. The primary judge did not accept that argument, adopting the decision and reasoning of Pain J in Commitment Pty Ltd v Georges River Council (No 2) [2022] NSWLEC 94 that a development application can only be regarded as having been “made” for the purpose of a savings provision, after the fee payable for such a development application has been paid. The primary judge stated that: “This is because, for the reasons her Honour explained, it is the completion of lodgement of a development application which is to be regarded as its making for such transitional protection to be afforded to it”: at [62]. The primary judge found that: “On the timing analysis of the various steps here relevant as earlier set out, it is clear that the Company's development application was “made” on 9 December 2021”: at [64].

140. The fourth ground is not established. The applicant’s argument is dependent on its construction of cl 50(9) that the provision only operates to deem a development application not to have been lodged when the consent authority notifies the applicant by means of the NSW planning portal that fees are payable and the applicant has not paid those fees.

141. That is not the correct interpretation of the operation of cl 50(9). The provision operates from the time a development application is lodged on the NSW planning portal under cl 50(1)(d) of the EPA Regulation 2000. It deems the development application, which has in fact been lodged, not to have been lodged. That deeming operation continues until the occurrence of the event specified in the provision: the payment of the fees notified to the applicant by means of the NSW planning portal.

142. If a consent authority does not determine under cl 256(1) the fee to accompany the development application and give notice under cl 256(2) of such a determination to the applicant by means of the NSW planning portal, the event specified in cl 50(9) cannot occur. The applicant cannot pay fees that have not been notified to the applicant. But this simply means that cl 50(9) continues to operate to deem the development application not to have been lodged.

143. That could, where there is significant delay, operate prejudicially to an applicant. That potential prejudice was recognised by the primary judge, prompting his observation that an applicant in this circumstance could apply to the Court for an order in the nature of mandamus to compel the consent authority to determine and notify the applicant of the fees payable: at [74]. But the availability of that remedy does not affect the interpretation of cl 50(9).

144. On a proper interpretation, cl 50(9) operates to deem a development application not to have been lodged until the fees notified to the applicant by means of the NSW planning portal have been paid. The consent authority is then obliged, under cl 50(8) of the EPA Regulation 2000, to notify the applicant by means of the NSW planning portal that the development application has been lodged.

145. In this case, as the Council did not notify the applicant of the fees payable until 2 December 2021 and those fees were not paid by the applicant until 9 December 2021, cl 50(9) operated to deem the applicant’s development application not to have been lodged, from the date of its lodging on the NSW planning portal on 22 October 2021 until the date of payment of the fees on 9 December 2021. The Council, under cl 50(8) of the EPA Regulation 2000, notified the applicant on 13 December 2021, by means of the NSW planning portal, that the development application had been lodged. This meant that, as at the commencement date of the 2021 SEPP of 26 November 2021, the development application was taken not to have been lodged.

146. The fifth ground was that the primary judge erred in finding that the applicant’s development application had not been received prior to 26 November 2021 for the purpose of cl 256(1) of the EPA Regulation. That provision specifies a time period within which a consent authority must determine the fee to accompany a development application. This time period is “before, or within 14 days after, the consent authority receives the application”.

147. The applicant argued that a failure by the consent authority to determine the fee to accompany the development application within the time period specified in cl 256(1) means that cl 50(9) has no work to do. The applicant submitted that the primary judge did not directly address this argument. Instead, the primary judge found that until a complete and effective development application is made, the consent authority does not receive the application and the time period in cl 256(1) does not commence: at [68]. On this basis, the primary judge found that “there was no failure by the Council to determine and advise the development application fee payable by the Company, as that determination and notification was clearly made within the 14‑day period after Sch 1, cl 2(1)(d) was satisfied as nominated by cl 256 of the 2000 Regulation”: at [72]. The applicant challenged this finding.

148. The fifth ground should be rejected. Whether the primary judge was correct or not in interpreting the time period in cl 256(1) as commencing from the date the consent authority receives a complete and effective development application is not material to his decision that the applicant’s development application was not made until the duly determined and notified fee for the development application was paid.

149. As I have earlier explained, while the determination of the fee payable under cl 256(1) and notification of that determination under cl 256(2) are necessary in order for the deeming provision in cl 50(9) to cease operating, because an applicant can only pay fees that have been duly determined and notified, they are not necessary in order for the deeming provision to commence operating, as the deeming provision operates from the time a development application is lodged on the NSW planning portal under cl 50(1)(d). Hence, ascertaining the time period within which the Council could make a determination under cl 256(1) of the fee to accompany a development, by reference to when the Council could be said to have “received” the application, is unnecessary in order to determine when the development application was “lodged” or “made”.

150. The applicant has therefore not established any of the five grounds it raises in its draft notice of appeal. Although for reasons I give below, leave to appeal should be granted, an appeal raising these five grounds should be dismissed.

Leave to appeal

167. The applicant submitted that leave to appeal against the primary judge’s determination of the separate question should be granted for three reasons.

168. First, just as the primary judge determined that ordering that the question of whether the development application had been made on or before the commencement date of the 2021 SEPP be determined separately to other questions in the proceedings in the court below would facilitate the just, quick and cheap disposition of the proceedings, so too would granting leave to appeal against the primary judge’s determination of that separate question. Resolution of the question impacts on the applicable environmental planning instrument to be used by the court below in the assessment of the applicant’s development application, whether the 2021 SEPP or the 2009 SEPP.

169. Secondly, the statutory interpretation questions raised by the appeal are likely to affect many other development applications being made. The phrase used in the savings provision in this case, “a development application made, but not yet determined”, is commonly used in savings provisions consequential upon the commencement, amendment or repeal of environmental planning instruments.

170. Thirdly, the statutory scheme for making a development application has changed materially since this Court’s decision in Botany Bay City Council v Remath Investments No 6 Pty Ltd. There has not been an authoritative determination of the application of a savings provision of the type involved in this case to the changed statutory scheme for making a development application.

171. The Council contested leave to appeal being granted. The application of the 2021 SEPP rather than the 2009 SEPP to the applicant’s development application does not cause any substantial injustice to the applicant justifying the grant of leave to appeal. There is no obviously doubtful reasoning of the primary judge. There are no conflicting authorities that need to be resolved.

172. I consider that leave to appeal should be granted, at least for the reason that there is benefit in this Court explaining the operation of a savings provision of the type involved in this case to the changed statutory scheme for making development applications. Since this Court considered this question in Botany Bay City Council v Remath Investments No 6 Pty Ltd, there have been considerable changes in the requirements for the form and manner of making a development application, including requiring the lodging of a development application on the NSW planning portal. The implications of these changes in the statutory scheme for making a development application are being raised in appeals in the court below but have yet to be resolved authoritatively. This appeal allows this to be done.

Orders

173. I propose the Court make the following orders:

1. Grant leave to appeal against the decision of Moore J of 16 December 2022 in the form of the draft notice of appeal dated 14 March 2023.

2. Direct the applicant to file the appeal within 7 days of this order.

3. Dismiss the appeal.

4. Order the applicant to pay the respondent’s costs of the application for leave to appeal and the appeal.

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Endnotes

Amendments

02 November 2023 - Amendment to solicitor representation

Decision last updated: 02 November 2023