In the recent decision in Butler Street Community Network Incorporated v Northern Region Joint Regional Planning Panel  NSWLEC 51, the Land and Environment Court (Court) had to determine whether consent granted for development not requiring consent was invalid. The Court also had to consider whether it has jurisdiction, where the majority of the development is permissible without consent. This case note confirms how the established hierarchy of environmental planning instruments (EPIs) interplay when multiple EPIs apply to land, and looks at the Court’s jurisdiction to determine applications.
The Northern Region Joint Regional Planning Panel (Panel) granted consent to a development application by GHD Pty Ltd, lodged on behalf of Byron Bay Shire Council (Council), for the upgrade of the Byron Bay Bypass within the Byron Bay township (DA). A portion of the bypass will pass through wetlands to which the State Environmental Planning Policy No 14 - Coastal Wetlands (SEPP 14) applies.
Butler Street Community Network (Objector) commenced proceedings to challenge the Panel’s consent.
The hierarchy of EPIs
The zoning of the land the subject of the DA under the Byron Bay Local Environmental Plan 2014 (LEP) allows the construction of roads with consent. However, clause 94 of the State Environmental Planning Policy (Infrastructure) 2007 (Infrastructure SEPP) also applies to the land, and permits development for the purposes of a road without consent by a public authority.
It was common ground in the proceedings that to the extent of the inconsistency between the LEP and the Infrastructure SEPP, clause 8(1) of the Infrastructure SEPP operates to allow the Infrastructure SEPP to prevail. As a result, the majority of the bypass could be developed without consent.
It was also common ground that consent was required for the part of the bypass which would pass through the wetlands, because clause 8(2) of the Infrastructure SEPP provides that SEPP 14 prevails to the extent of any inconsistency with it.
The Objector's argument
The Objector argued that:
the majority of the bypass did not require consent, and consent cannot be granted for development which does not require consent. Therefore, the Panel did not have the power to grant the DA except in relation to the part of the bypass located within the wetlands.
as a result, the DA was invalid. Without a valid DA before it, the Court did not have jurisdiction to grant or uphold consent under section 80 of the Environmental Planning and Assessment Act 1979 (EP&A Act); and
to determine only the part of the DA affecting the wetlands would require the DA to be amended in such a significant way that it would constitute a fresh application under clause 55 of the Environmental Planning and Assessment Regulation 2000, which the Court did not have the power to entertain.
Was the DA invalid?
On the question of whether the DA was invalid, the Court applied the reasoning of Spigelman CJ in Currey v Sutherland Shire Council and Russell . The prohibition in section 76A of the EP&A Act prohibits development without consent, where an EPI provides that development may not be carried out except with consent. There is no prohibition on making a development application for development which does not require consent.
On that basis, the Court held that it is open to an applicant to make a development application for any development, and it falls to the consent authority to determine the extent to which the development is permissible under the applicable EPIs, and grant consent accordingly.
To the extent the Panel did in fact grant consent for those parts of the DA that did not require it, the Court held that this consent was merely superfluous and therefore of no legal effect. This did not invalidate the DA, it simply meant no application was required and the action of granting consent had no effect.
Did the Court have power to determine the DA?
On the question of whether the Court had jurisdiction to determine the DA, the Court accepted that it cannot give consent to works not requiring consent, however this does not result in a lack of jurisdiction in the proceedings. The right of appeal in section 98 of the EP&A Act allows appeals against determinations by consent authorities, rather than against the consent itself. It is also within the Court’s power to grant consent to only a part of a development application (i.e. the part of the DA within the wetlands).
Not only did this mean the Court had jurisdiction, but that the Objector’s third ground of challenge was defeated, because determining the part of the application located within the wetlands was within the Court’s jurisdiction. Asking the Court to determine only part of the application did not constitute a change to the application.
This case highlights some important procedural principles in making and determining development applications, both in relation to how EPIs should be interpreted where multiple EPIs apply to the same land, and what constitutes a valid development application. It also confirms that the Court has jurisdiction to consider and grant consent in respect of only part of a development.
  NSWCA 300; (2003) 129 LGERA 223 at .
Author: Rebecca Hiscock
Joseph Monaghan, Partner
T: +61 3 9321 9857
Breellen Warry, Partner
T: +61 2 8083 0420
Gerard Timbs, Partner
T: +61 7 3135 0644
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