In the case of Commitment Pty Ltd v Georges River Council; (No 2)  NSWLEC 94 the Land and Environment Court considered when a development application is considered to have been ‘made’.
The Georges River Local Environmental Plan 2021 (GRLEP) and the Georges River Development Control Plan (GRDCP) came into effect on the same day that the Applicant (Commitment) paid the fee for lodgement of a development application on the New South Wales Planning Portal.
Like many other local environment plans, the GRLEP contained the following clause:
“1.8A Savings provisions relating to development applications
If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not been finally determined before that commencement, the application must be determined as if this Plan had not commenced.”
Commitment intended for the development application to be assessed against the Hurstville Local Environmental Plan 2012 (HLEP), which was in force prior to the GRLEP coming into effect.
However, Georges River Council (Council) considered that as at the day that the GRLEP came into effect, the development application lodged by Commitment had not been ‘made’ for the purposes of clause 1.8A of the GRLEP.
Council assessed the determined against the GRLEP and the related development control plan, and this resulted in Council’s refusal to grant development consent.
The Court was therefore required to consider when the development application was ‘made’ in order to determine the applicable planning controls.
Timeline of important dates
On 30 September 2021 the following actions occurred:
- Commitment submitted a development application to the NSW Planning Portal and a PAN number was generated for the development application;
- an automated email was sent from NSW Planning Portal to Commitment acknowledging submission; and
- Commitment’s planner sent an email to an officer of Council requesting further information including the required DA fee.
On 8 October 2021 HELP was repealed and GRLEP and GRDCP came into force. On that same day Commitment paid the development application fee.
On 28 October 2021, Council sent an “Acknowledgement of Development Application” letter to Commitment.
Prior to 1 March 2022, the Environmental Planning and Assessment Regulation 2000 (2000 Regulation) was in force.
On 1 March 2022, the new Environmental Planning and Assessment Regulation 2021 (2021 Regulation) came into force.
When is a development application ‘made’?
The development application was lodged prior to the operation of the Environmental Planning and 2021 Regulation. This meant that the Court was required to consider the 2000 Regulation for the purposes of determining when the development application was ‘made’.
Clause 50 of the 2000 Regulation, as in force at the time the application was submitted to the NSW Planning Portal, states the following:
50 How must a development application be made? (cf clause 46A of EP&A Regulation 1994)
(1) A development application must—
(a) be in the form that is approved by the Planning Secretary and made available on the NSW planning portal,
(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,
(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.
The parties agreed that by force of section 24 of the Interpretation Act 1987 (NSW), the (GRLEP) came into force very early on 8 October 2021.
With respect to the definition of the word ‘made’ the parties agreed that it is “…not a term with a specific statutory meaning required beyond its ordinary use…”.
Thus, Justice Pain was required to consider the interpretation of the word ‘made’ within its statutory context. The Court determined that a development application is ‘made’ for the purposes of clause 1.8A of the GRLEP “…when there is substantial compliance with each of the requirements of the EPA Act and EPA Regulation 2000 applicable to the making of DAs” including payment of the fee.
Commitment was not considered to have paid the applicable lodgment fee, and therefore not considered to have ‘made’ its development application, prior to the commencement of GRLEP and GRDCP.
Accordingly, Commitment was not ‘saved’ by clause 1.8A of the GRLEP and Council’s application of the planning controls contained with GRLEP was upheld.
What does this mean?
The key take-aways from this case are as follows:
- a development application is considered to have been ‘made’ where there is “substantial compliance” with each of the requirements of the Environmental Planning and Assessment Act 1979 and 2000 Regulation, including payment of the lodgment fee;
- the lodgment process pursuant to clause 50 of the 2000 Regulation is not indicative of a separate process to the making of a DA, but is instead an essential part of that process to facilitate its determination; and
- given the similarities of between clause 50 of the 2000 Regulation and its equivalent provision within the 2021 Regulation (clause 24), it is possible that a similar outcome would be determined with respect to development applications lodged on or after 1 March 2022 (for which the 2021 Regulation would apply).