Evaluation and Consideration – The “likely impacts” of development

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Evaluation and Consideration – The “likely impacts” of development

By Benjamin Kelso and Chris Shaw

When a consent authority is undertaking its assessment of a development application, section 4.15 of the Environmental Planning and Assessment Act 1979 requires a number of matters to be considered before making a determination. If these matters are not considered, they may form grounds for the development consent to be held invalid.

One such relevant consideration is “the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality”. A number of cases in the NSW Land and Environment Court and Court of Appeal have discussed what the legislation requires, and highlight the importance (to both applicants and councils) of ensuring all relevant material is put forward and assessed to ensure a consent is valid. In particular, what matters must be considered at the development application stage and can not be deferred for consideration at a later date, and the scope of such impacts.

In Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349, the Court of Appeal considered an appeal by a residents group objecting to a development application for a school.

The school was proposed to be accessed by a yet to be constructed road and bridge – however this infrastructure was not included as part of the development application.

Basten JA delivered the main judgment (Giles JA and Macfarlan JA agreeing) and confirmed that the question of “likely impacts” is one of remoteness with a “real chance or possibility”. The obligation is on the consent authority to determine the scope of this inquiry and “the point at which a particular impact is too remote to demand consideration” as a precondition to then considering the likely impacts of that particular matter.

In this case, the Court found that the construction of the bridge was a “likely impact” of the development, despite not strictly being proposed by the development application. The impacts of the bridge could not be exempt from assessment of the present development application merely because those impacts were to be the subject of latter assessment. If this were the case, then consideration of inter-related and cumulative impacts of developments may escape assessment, and that would be contrary to the purpose of the legislation.

In Bay Simmer Investments Pty Ltd v State of New South Wales [2017] NSWCA 135, the Court of Appeal considered a development application for a “concept proposal” (i.e the big picture staged proposal) which would then be followed by subsequent “detailed proposals”. The main judgment was again delivered by Basten JA, with Leeming JA and Sackville AJA agreeing.

The primary judge in the Land and Environment Court had made a distinction between construction related impacts and operational impacts of the development, and found that construction related impacts did not need to be considered at the concept proposal stage.

However, the Court of Appeal rejected this approach in finding that the construction impacts as well as the operational impacts should be assessed at the concept proposal stage and could not be deferred for consideration when the detailed proposals were lodged, because the construction impacts were still a “likely impact” of the development.

The Court also reasoned that the concept proposal could not be inconsistent with the detailed proposals, and therefore all relevant impacts were essential to consider at the preliminary concept stage.

In Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41, Chief Judge Preston considered an application to expand a seniors housing resort with 75 new self-care dwellings.

Council had initially refused the development application, which was then appealed by the applicant and approved by a Commissioner of the Land and Environment Court. Council subsequently appealed against the Commissioner’s approval and was ultimately successful, with the decision of the Commissioner being set aside.

Preston CJ accepted Council’s ground of appeal that “likely impacts” included offsite impacts that have a “real and sufficient link” to the proposed development. The Court qualified that increasing remoteness in the chain of consequences will decrease the significance of an impact.

However, in this case the Commissioner erred by failing to take into consideration the impact of essential roadworks which were intrinsically linked to the development. Instead, the Commissioner had incorrectly relieved herself from that consideration by implementing a deferred commencement condition which merely required environmental assessment at a later date. However, legislation requires the consent authority to consider the “likely impacts” of the development, and this consideration must happen before the development application can be determined.

Key takeaways:

  • Consideration of “likely impacts” are not restricted to just on-site impacts – it may also be necessary to consider offsite impacts of the development. However, the more remote an impact, the less significance it will hold.
  • Deferred commencement conditions cannot be used to relieve the obligation to consider “likely impacts” before determination of the development application. Applicants should therefore be aware of the restricted scope of deferred commencement conditions, and that they cannot be used to defer assessment of essential matters.
  • Applicants should attempt to ensure that sufficient information relating to the “likely impacts” of the development is presented to the satisfaction of Council to ensure their application has been determined properly and is not at risk of being invalidated.
  • Staged development applications must still involve consideration of “likely impacts” at the earlier stages, even if these matters may be considered again under the subsequent detailed applications.