A Development Application (DA) will only be "made" for the purposes of the Environment Planning and Assessment Act 1979 (NSW) and the Environmental Planning and Assessment Regulation 2000 (NSW), triggering statutory obligations and rights, once all associated documents, plans and fees have been lodged and paid, and a notification of lodgment created on the NSW Planning Portal (Hinkler Ave 1 Pty Limited v Sutherland Shire [2023] NSWCA 264).
This will have important implications for a variety of actors in the NSW planning and development industry, and should be the subject of close attention.
A deemed refusal
Hinkler concerned an appeal against a deemed refusal of a DA. A critical issue to determine which planning controls applied to the proposed development was whether the DA had been "made" before the commencement of a new planning instrument, the State Environmental Planning Policy (Housing) 2021 (NSW) (Housing SEPP).
On 22 October 2021, the Applicant uploaded its DA to the NSW Planning Portal. Importantly, the DA included:
- the A4 plan of the proposed building as required by the Regulation; and
- the required fee.
Shortly thereafter, on 26 November 2021, the Housing SEPP commenced. Just short of one week later, on 2 December 2021, the Council notified Hinkler that the Fee remained outstanding; it was paid a week later.
After the Council failed to determine the DA, Hinkler appealed to the Land and Environment Court of NSW (LEC) on 30 August 2022 on the basis of a "deemed refusal" of its DA: that is, the Council had not determined the DA within the prescribed statutory period. The question of the application of the Housing SEPP – and, therefore, the date that the DA was "made" – was a preliminary question before the LEC. If it had been "made" on or before 26 November 2021, the former planning controls under State Environmental Planning Policy (Affordable Rental Housing) 2009 (2009 SEPP) applied to the DA, on the basis that the application of the 2009 SEPP was saved via the savings and transitional provisions of the later Housing SEPP.
Why a Development Application has to be lodged in its entirety
THE LEC determined held that the DA had not been "made" on or before the transitional date the consequence being that the Housing SEPP and not the 2009 SEPP would apply. Hinkler appealed to the Court of Appeal which upheld the decision of the LEC.
Firstly, the Court of Appeal confirmed that clause 50(1) of the Regulations prescribe the form requirements for a DA that is properly " made". That is, the DA must be in the approved form, contain the information required and be accompanied by the information and documents required (including the Plan and the Fee) before it can be considered "made" for the purposes of the Act and Regulations.
This is the case, despite the fact that the Council had not exercised its power under clause 50(1) to reject the DA. Chief Judge Preston of the LEC noted that a DA that does not satisfy the relevant form requirements is "incomplete and ineffective, regardless of whether the consent authority exercises the power under clause 50(1) to reject the DA".
The Court of Appeal then interpreted clause 50(1)(d) of the Regulation strictly: a DA is only "made" once it is lodged on the NSW Planning Portal in its entirety, including the required accompanying information and documents (such as the Plan and the Fee).
The consequence of the Applicant’s DA not meeting the form requirements of the Regulation was, therefore, that the DA was incomplete as at 26 November 2021, and therefore not "made" for the purposes of the Act and the Regulations prior to that date. While an incomplete DA is not invalid, it is ineffective insofar as it fails to possess the "legal effect" of a DA for the purposes of the Act and the Regulations. By extension, the Court held that an incomplete and ineffective DA cannot engage the power of the consent authority – in this case, the Council – to grant consent to the DA, and that the applicable SEPP was the Housing SEPP, rather than its predecessor.
Key takeaways
The key takeaway from Hinkler is that unless and until all documents and plans have been lodged and fees paid, and a notification of lodgment has been created on the NSW Planning Portal, a DA will not be "made" for the purposes of the Act and the Regulations. This has some important ramifications for developers, councils, and other public agencies.
Firstly, the "making" of a DA may be an important trigger date for various council assessment processes. For example, a council is taken to have refused a DA (a "deemed refusal") if no decision has been made within 60 days, depending on the nature of the development, meaning that the time for an applicant to appeal to the LEC's Class 1 jurisdiction will only commence at the conclusion of this period.
Developers should also bear in mind their contractual obligations, such as those under Project Development Agreements. The lodging of a DA may be a relevant condition precedent to delivery or completion, or may otherwise be the subject of a sunset date. Failure to lodge a complete DA (thereby rendering a DA not yet "made") may cause a breach of contract, and leave developers susceptible to considerable risk if these time frames are missed.
Lastly, councils can only make a decision to grant or deny a DA on the basis of a complete and legally effective DA. On this basis, it is only once the DA is "made" that the 60-day window for a decision commence to run and, in any event, government officials cannot grant or refuse consent for incomplete or not-yet-made DAs.