Commitment Pty Ltd v Georges River Council;

Environmental Planning and Assessment Act 1979 (NSW)

1. The relevant portions of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) state: Part 1 Preliminary … 1.4 Definitions … NSW planning portal means the website with the URL of www.planningportal.nsw.gov.au, or any other website, used by the Planning Secretary to provide public access to documents or other information in the NSW planning database. … Division 2.7 Miscellaneous 2.25 NSW planning portal and other online services and information (1) The Planning Secretary is to establish and facilitate the online delivery of planning services and information (including the NSW planning portal). (2) Schedule 3 contains provisions relating to the NSW planning portal and the online delivery of those services and information. … Part 4 Development assessment and consent … Division 4.3 Development that needs consent (except complying development) … 4.12 Application (1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development. (2) A single application may be made in respect of one or more of the types of development referred to in paragraphs (a)-(f) of the definition of development in section 1.5(1). … (9) The regulations may specify other things that are required to be submitted with a development application. … Division 4.10 Miscellaneous Part 4 provisions … 4.64 Regulations - Part 4 (1) In addition to any other matters for or with respect to which regulations may be made for the purposes of this Part, the regulations may make provision for or with respect to the following - … (b) the persons who may make development applications, (c) the making, consideration and determination of development applications that are made by or on behalf of the Crown, public authorities and persons prescribed by the regulations, … (e) the documents and information required to accompany development applications, including documents that will assist the consent authority in assessing the environmental effects of development, (f) the fees for development applications, … Schedule 3 NSW planning portal and online delivery of planning services and information 1 Establishment, content and maintenance of NSW planning database (1) The NSW planning database is established for the purposes of this Act. (2) The NSW planning database is an electronic repository of - (a) documents that are required by or under this Act to be published on the NSW planning portal, and (b) environmental planning instruments, plans or other documents that are required by or under this Act to be published on the NSW legislation website, and (c) spatial datasets or other maps that are adopted or incorporated by way of reference by those instruments, plans or documents, and (d) other documents or information relating to the administration of this Act required to be published on the NSW planning portal by the regulations or by the Planning Secretary. (3) The NSW planning database is to maintain historical as well as current versions of documents and other material required to be published on the NSW planning portal. (4) The NSW planning database is to be compiled and maintained as determined by the Planning Secretary. (5) The NSW planning database may comprise separate databases for different material. Any such separate databases may be compiled and maintained by other agencies, including the legislation database compiled and maintained by the Parliamentary Counsel for publication of environmental planning instruments or other material on the NSW legislation website. 2 Public access to documents and information on NSW planning portal (1) The Planning Secretary is to make arrangements for documents or other information in the NSW planning database to be published on the NSW planning portal and such other websites as are determined by the Planning Secretary. (2) The Planning Secretary may certify the form of such documents or other information that is correct. (3) Environmental planning instruments, plans or other documents and information need not be published on the NSW planning portal if they are published on the NSW legislation website (or the website of another agency) and can be readily accessed from the NSW planning portal. (4) If the NSW planning portal is not available to publish a document or other information for technical or other reasons, the document or other information may be published on the NSW legislation website. 3 Regulations and other provisions relating to online planning services and information (1) The regulations may make provision for or with respect to the online delivery of planning services and information, including - (a) the NSW planning portal and other specialised planning portals (including the status of services and information delivered online), and (b) access to information (and the issue of certificates) about land use zoning, development standards and other information relating to particular land, and (c) the lodgment or submission of applications and other things under this Act, and (d) the assessment of categories of development for which there are codified criteria or standards, and (e) the registration of consents, approvals or certificates (or other documents) and their effect on registration, and (f) the notification of the making or determination of applications for (or the issue or grant of) consents, approvals or certificates (or other documents) by means of the NSW planning portal. …

Environmental Planning and Assessment Regulation 2000 (NSW) (repealed)

1. The relevant portions of the now repealed Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regulation 2000) stated: Part 6 Procedures relating to development applications Division 1 Development applications generally 47 Application of Part This Part applies to all development applications. 48 Consent authority to provide development application forms to intending applicants The consent authority must provide any person intending to make a development application with: (a) the consent authority's scale of fees for development applications generally, and (b) if the consent authority has determined the fee to accompany that particular application, advice of the amount determined, and (c) if the consent authority requires such an application to be in a particular form, blank copies of that form. 49 Who can make a development application? (1) A development application may be made: (a) by the owner of the land to which the development application relates, or (b) by any other person, with the consent in writing of the owner of that land. (2) Subclause (1) (b) does not require the consent in writing of the owner of the land for a development application made by a public authority if, before making the application, the public authority serves a copy of the application on the owner. (3) Despite subclause (1), a development application made by a lessee of Crown land may only be made with the consent in writing given by or on behalf of the Crown. … [Clause 50 of the EPA Regulations in SOAF at par 23: above in [2].] … 51 Rejection of development applications (1) A consent authority may reject a development application within 7 days after receiving it if the application is illegible or unclear as to the development consent sought. (2) A consent authority may reject a development application within 14 days after receiving it if: (a) being an application for integrated development, the application fails: (i) to identify all of the approvals referred to in section 91 of the Act that are required to be obtained before the development may be carried out, or (ii) to include the additional fees appropriate for each approval relevant to the integrated development, or (iii) to include the additional information required by this Regulation in relation to the integrated development, or (b) being an application referred to in section 78A (8) (b) of the Act, the application is not accompanied by a species impact statement referred to in that paragraph. (3) An application that is rejected under this clause is taken for the purposes of the Act never to have been made. (4) The consent authority must refund to the applicant the whole of any application fee paid in connection with an application that is rejected under this clause. (5) Immediately after the rejection of a development application for: (a) development for which the concurrence of a concurrence authority is required, or (b) integrated development, the consent authority must notify each relevant concurrence authority or approval body of the rejection. 52 Withdrawal of development applications (1) A development application may be withdrawn at any time prior to its determination by service on the consent authority of a notice to that effect signed by the applicant. (2) An application that is withdrawn is taken for the purposes of the Act (section 79 (6) of the Act and clause 90 (3) of this Regulation excepted) never to have been made. (3) The consent authority may (but is not required to) refund to the applicant the whole or any part of any application fee paid in connection with an application that has been withdrawn. (4) Immediately after the withdrawal of a development application for: (a) development for which the concurrence of a concurrence authority is required, or (b) integrated development, the consent authority must notify each relevant concurrence authority or approval body of the withdrawal. … 54 Consent authority may request additional information (1) A consent authority may 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. (2) The request: (a) must be writing, and (b) may specify a reasonable period within which the information must be provided to the consent authority. (3) The information that a consent authority may request includes, but is not limited to, information relating to any relevant matter referred to in section 79C (1) (b)-(e) of the Act or in any relevant environmental planning instrument. (4) However, the information that a consent authority may request does not include, in relation to building or subdivision work, the information that is required to be attached to an application for a construction certificate. Note. The aim of this provision is to ensure that the consent authority does not oblige the applicant to provide these construction details up-front where the applicant may prefer to test the waters first and delay applying for a construction certificate until, or if, development consent is granted. (5) Instead of providing the information requested, the applicant to whom a request is made under this clause may notify the consent authority in writing that the information will not be provided. (6) If the applicant for development consent has failed to provide any of the requested information by the end of: (a) any period specified as referred to in subclause (2) (b), or (b) such further period as the consent authority may allow, the applicant is taken to have notified the consent authority that the information will not be provided, and the application may be dealt with accordingly. … Division 11 Time within which development application procedures to be completed … 113 When is an application taken to be refused? … (2) The 40-day and 60-day periods are measured from: (a) the date the development application is lodged with the consent authority, or (b) the date the Minister complies with section 119 (8) of the Act, if a public inquiry has been held under section 119 of the Act into local development that is not designated development, or part of any such development. … Part 15 Fees and charges Division 1 Fees for development applications … 255 How is a fee based on estimated cost determined? (1) In determining the fee for development consisting of the erection of a building, the carrying out of a work or the demolition of a building or work, the consent authority must make its determination by reference to a genuine estimate of the construction costs of the building or work or the costs of demolition. (2) The estimate must, unless the consent authority is satisfied that the estimated cost indicated in the development application is neither genuine nor accurate, be the estimate so indicated. 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.
2. Clause 50(1)(c) and (d) were amended as above in [2] on 1 July 2020 to introduce compulsory lodgment on the NSW planning portal.
3. The NSW Planning portal was first defined in the Environmental Planning and Assessment Amendment Act 2014 (NSW).

Environmental Planning and Assessment Regulation 1994 (NSW)

1. The Environmental Planning and Assessment Regulation 1994 (NSW) (EPA Regulation 1994) stated who can make a development application in cl 46. Clause 46A of the EPA Regulation 1994 is titled "How must a development application be made?" Clauses 46 and 46A stated: Part 6 Procedures relating to development applications Division 1 Development applications generally … 46 Who can make a development application? (1) A development application may be made: (a) by the owner of the land to which the development application relates, or (b) by any other person, with the consent in writing of the owner of the land to which the development application relates. … 46A How must a development application be made? (1) A development application: (a) must be in Form 1, and (b) must be accompanied by the information required by Form 1, and (c) must be accompanied by the fee, not exceeding the fee prescribed in Part 9, determined by the consent authority, and (d) must be: (i) delivered by hand, or (ii) sent by post, or (iii) transmitted electronically To the principal office of the consent authority, and may not be sent by facsimile transmission. …
2. I am informed that Clauses 46 and 46A continued in similar form in the EPA Regulation 2000 until the amendments on 1 July 2020 when use of the planning portal for the lodgment of development applications became compulsory and the requirement to pay fees at the time of submitting a development application changed. I was informed this was because there was no ability to pay a fee on the planning portal at the time I am considering in these proceedings, being September-October 2021. I note by way of background that the EPA Regulation 2021 came into effect on 1 March 2022 repealing the provisions I am considering which have now changed including as to when a fee is payable.

Interpretation Act

1. Section 34 of the Interpretation Act 1987 states: 34 Use of extrinsic material in the interpretation of Acts and statutory rules (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material - (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision - (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable. (2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes - … (f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House, … (3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to - (a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), and (b) the need to avoid prolonging legal or other proceedings without compensating advantage.

Evidence

1. The tender bundle of documents was marked Ex A. Additional documents referred to in the bundle include: 1. an email from the NSW Planning portal received by the Applicant after submitting the DA acknowledging the application was submitted through the NSW Planning portal for pre-lodgment review; providing a unique portal application number (PAN) for the new DA; stating that the Council will review the application; and noting that the application will only progress to lodgment when all relevant fees are paid. The email also stated that "you will receive an email notification when your application has been lodged". 2. A receipt issued by the Council on 8 October 2021. 3. A letter from the Council to the Applicant dated 28 October 2021 headed acknowledgment of DA sent.
2. Another notification received from the NSW Planning Portal (Ex A Tab 5 folio 10) for an earlier DA submitted by the Applicant was not formally read. It was referred to as it identifies at the bottom of the page "this email has been automatically sent through the NSW Planning portal…"
3. An affidavit of Mr Loether solicitor for the Applicant dated 1 August 2022 was read in part (pars 1-6 and par 13). Paragraph 13 identifies that a council officer rang the Applicant's director to advise of the fee payable for the DA and he paid the fee required directly to the Council (I was informed that this was over the telephone) on 8 October 2021.
4. The Second Reading Speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 22 October 2014) for the Environmental Planning and Assessment Amendment Bill 2014 (2014 Amendment Bill) and the Second Reading Speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 18 October 2017 at 2) for the Environmental Planning and Assessment Amendment Bill 2017 (2017 Amendment Bill) both identify that the amendments then being considered as part of introducing the NSW Planning Portal intended to create a simpler, more efficient and transparent development assessment process.

Applicant's submissions

1. The three questions should be answered: 1. Yes; 2. Yes, but only as a mandatory relevant consideration by virtue of s 4.15(1)(a)(ii) of the EPA Act (not actually applying); and 3. Yes.
2. Principles of statutory construction were identified in Loder v Narrabri Shire Council [2020] NSWLEC 109 (Loder) at [60] and the same principles also apply to statutory instruments. The elements of cl 1.8A of the GRLEP require consideration of whether a DA has been made. These words should be given their ordinary meaning. The words "development application has been lodged" do not appear in cl 1.8A. That a DA has not been lodged, as referred to in cl 50(8) and (9) does not mean it has not been made. The parties agree the DA was submitted on the NSW Planning Portal on 30 September 2021 and was therefore made on that day. That day is before the commencement of the GRLEP on 8 October 2021.
3. Under s 4.12(1) and (2) of the EPA Act an application may be made by 'a person', not a consent authority. "Subject to the regulations" in s 4.12(1) qualifies what a person applying for a DA can do, not what the consent authority does. Similarly in relation to s 4.12(2).
4. Turning to the regulations in force when the DA was made (the EPA Regulation 2000) cl 49 limits who can apply for consent, no reference is made to lodgment and a consent authority has no role under that clause. The heading to cl 50 "How must a DA be made" does not form part of the Act under s 35 of the Interpretation Act. It can be used to assist in the interpretation of the Act in the circumstances set out in s 34 of the Interpretation Act. By cl 50(8) the NSW Planning Portal is the means used to notify that a DA has been lodged. That cannot be by the applicant obviously. That step is a clear indication that lodgment is not part of making an application as someone other than the applicant is responsible for that task of confirmation of lodgment. That approach is supported by s 4.12 of the EPA Act. Clause 50(9) is further confirmation of this approach as lodgment is delayed until payment has been made. Payment of a fee is not referred to in cl 50(1).
5. Steps can be taken before a fee is paid, such as withdrawal of an application under cl 52, and a request for additional information under cl 54. Neither step relies on payment of a fee or lodgment. How can a DA not yet made be withdrawn or how can a DA be refused if not yet made? This suggests the Applicant's construction is correct.
6. The consent authority must notify an applicant of the fees payable under cl 256 and an applicant cannot pay fees without this determination. The consequence of non-payment is that the application "is taken not to have been lodged", by which time the applicant must have already applied for development consent by application on the NSW Planning Portal and a consent authority must have determined the fee. Persons other than an applicant cannot determine if an application is made given the entitlement to "apply" granted by s 4.12.
7. The statutory rules provide separately for making and lodging a DA. The DA was made when it was submitted on the NSW Planning Portal and the automatic notification was received, allocating a PAN number unique to the DA.
8. "Lodged" can be contrasted with "had been made" as was done in Ironlaw Pty Ltd v Wollondilly Shire Council (No 2) (2013) 197 LGERA 238; [2013] NSWLEC 146 (Ironlaw) at [60]. Lodgment is a separate process.
9. Additionally, the power to make regulations in relation to Pt 4 of the EPA Act, located in s 4.64 of the EPA Act, includes power with respect to: 1. persons who may make DAs ((1)(b)); 2. the documents and information required to accompany DAs ((1)(e)); and 3. the fees to accompany DAs ((1)(f)).
10. The way fees are dealt with cannot determine whether a DA has been made. Clause 50(1)(d) refers to lodgment and is subject to cl (9) which requires the payment of fees. Setting and notifying fees for lodgment of a DA are within the control of the council not an applicant. The Applicant has no control over when legislation will apply, here whether the Hurstville LEP applies which the DA was assessed under.
11. The scheme as identified by the Council creates a mischief. The applicant's entitlement to make a DA under the EPA Act is frustrated by a construction whereby 'lodgment' must be satisfied in order for a DA to be made when that is clearly a separate process.
12. In reply, the Applicant submitted that as the Council accepts that making and "applying" in s 4.12 are the same, s 4.12 must apply to the making of a DA. Lodgment of a DA is a separate matter under the statutory scheme. This is confirmed by cl 50(8) under which someone other than the applicant notifies the fact of lodgment, a step the applicant has no control over. The mode of fee payment and the obligation to pay a fee no longer appears in the regulations, unlike the former provisions. Paying a fee is not part of making a DA. Under s 256(3) if no fee is paid a council has no obligation to assess a DA. If there is no payment of a fee this provision is otiose in any event.
13. The Council's three stage approach to the proper construction of the legislation, the stages being (1) "submitting" a DA, (2) "lodging" a DA and (3) "making" a DA is not reflected in the statutory scheme and is not transparent, easier or flexible for an applicant who cannot know if they have made an application under the Council's approach. The Second Reading Speeches in 2014 and 2017 confirm this is the intent of the scheme.
14. Botany Bay City Council v Remath Investments No. 6 Pty Limited (2000) 50 NSWLR 312; [2000] NSWCA 364 (Remath CA) has no application to these issues, similarly Friends of South West Rocks Inc v Machro Pty Ltd and Ors [2004] NSWLEC 721 (South West Rocks).

Council's submissions

1. The questions should be answered: 1. No; 2. Yes; and 3. No.
2. Statutory construction principles are identified in pars 13-15 of the Council's written submissions and the summary in par 13 is particularly useful. It states: 13. As GRLEP is a species of delegated legislation, the general principles relating to the interpretation of Acts of Parliament are applicable to their construction. Relevantly: (a) A purposive and practical approach is to be given to the whole of the instrument; (b) All words in an instrument are to have meaning and effect; (c) General words are to be given their plain and ordinary meaning unless the contrary or an absurdity is shown; (d) All words must prima facie be given some meaning and effect, and construed to produce 'the greatest harmony and the least inconsistency'; (e) It is proper where a number of Acts form a scheme of legislation to look at all the Acts comprising that scheme for the purpose of construing the expressions in any one of those instruments; and (f) Interpretation is to give effect to the evident purpose or object of the instrument. [footnotes omitted]
3. The proper construction of "development application has been made" in cl 1.8A of GRLEP is the central issue underpinning the first question and requires analysis in light of the EPA Act and EPA Regulation 2000. A DA can only be made in accordance with the EPA Act and the EPA Regulation 2000, otherwise these have no work to do. The Applicant refers to uploading, putting or submitting a DA form to the NSW Planning Portal. "Submit" appears in different clauses/contexts and not in s 4.12 or cl 50(1) of the EPA Regulation 2000. The use of "made" and "lodged" separately in the EPA Regulation 2000 must be intentional.
4. "Made" is not defined in the GRLEP, the Standard Instrument, the EPA Act or the EPA Regulation. The plain and ordinary meaning can be adopted consistent with its use in the EPA Act and the EPA Regulations. DAs are made under Pt 4 (s 4.12) of the EPA Act. Section 4.12(1) entitles a person to apply to a consent authority to carry out development, subject to regulations. Section 4.12(9) specifies other things that are required to be submitted with a DA. A DA may be made by the owner of land to which the DA relates, or by any other person with the consent of the owner of the land. The making of a DA is further qualified by cl 50 of the EPA Regulation 2000.
5. The lodgment on the NSW Planning Portal is one aspect of the making of a DA such that a DA could not be made simply when 'put' onto the NSW Planning Portal when s 4.12(1) and (9) and cll 49 and 50 of the EPA Regulation 2000 are considered. To accept the Applicant's construction gives the words "subject to the regulations" in s 4.12(1), and cl 50 no work to do.
6. "Made" should be properly construed as made in accordance with the EPA Act and EPA Regulation 2000. Lodgment on the NSW Planning Portal is a necessary pre-requisite to a DA being made and lodgment is expressly contingent on payment of the relevant fee. Clause 50(9) makes clear that lodgment of a DA which is a prerequisite specified in cl 50(1)(d) only occurs when a fee as notified to the applicant has been paid. "Made" must be given work to do which on the Applicant's approach it does not.
7. The payment of a fee is required before steps to determine a DA can be commenced. Under cl 256(3) a council may refuse to consider a DA until the fee has been paid. The statutory intention of cl 50(9) is to overcome the situation where the council is required to assess a DA where the relevant fee had not been paid. Clauses 50(1)(d) and subcl (9) provide certainty to a council as to when a DA is made.
8. Payment of fees under cl 256 of the EPA Regulation 2000 is a further step in making a DA. That the timing of payment of fees and therefore lodgment and subsequently the making of a development application is reliant on steps required to be taken by the Council is irrelevant to statutory construction.
9. In accordance with cl 50(1) the DA has to have been lodged within the meaning of cl 50 of the EPA Regulation 2000 in order to have been "made" in the relevant sense. "Made" and "lodged" should not be considered in light of cl 113(2) which has different work to do. The focus should be cl 50(1), to enable an applicant to understand when its appeal rights are enlivened. Clause 50(1) enables a consent authority to understand when an application is made for the purposes of progressing assessment. Ironlaw is contextually different. Remath CA is directly relevant. See also South West Rocks at [32]-[34].
10. The statutory scheme provides for (1) 'submission' of a DA, (2) 'lodgment' of a DA and (3) the 'making' of a DA. These are discrete steps/stages which can occur at the same time if a fee is paid at the time or close to the time that a DA is submitted to the NSW Planning Portal. Whether a DA is "made" is ultimately a legal question.

Consideration

1. Principles of statutory construction are identified by the parties. In Loder I stated at [60]: 60 Statutory construction is concerned with giving a statutory provision the meaning that the legislature is taken to have intended it to have: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) at [78] (per McHugh, Gummow, Kirby and Hayne JJ). The task begins with the construction of the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 (Alcan) at [47] (per Hayne, Heydon, Crennan and Kiefel JJ). The starting point in considering the construction is the "ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose" per French CJ in Alcan at [4]. The object, in this regard, is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute: Project Blue Sky at [69]. As to context, the "modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in the widest sense to include such things as the existing state of the law and the mischief which, by legitimate means… one may discern the statute was intended to remedy": CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384; [1997] HCA 2 (CIC Insurance) at 408; see also Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 at [57]. However, historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text: Alcan at [47].
2. These principles are also summarised at par 13 of the Council's submissions extracted above in [32] and will be applied in my consideration. These principles apply to the construction of the statutory instruments before me. No case has been referred to which has considered these statutory provisions.
3. The SOAF identifies at pars 7-11 the facts relevant to the statutory construction issue under consideration which will determine if the GRLEP and Georges River Development Control Plan 2021 (NSW) (GRDCP) both commencing 8 October 2021 apply to the Applicant's DA or the earlier instruments the Hurstville Local Environmental Plan 2012 (NSW) and Hurstville Development Control Plan 2012 (NSW) apply.
4. The statutory scheme I am considering, which commenced on 1 July 2020 with changes to cl 50(1)(c) and (d) inter alia, varies from cl 46A of the 1994 EPA Regulation. It is instructive to note how. The changes to highlight particularly relate to the mode of delivery and the payment of a fee when submitting a DA. Under the former provision fees were payable at the time that a DA was submitted by delivery by hand, sent by post or transmitted electronically to the consent authority. The DA had to be accompanied by a fee.
5. As already identified above in [11] I am informed that the NSW Planning Portal could not accept payment at the time this DA was submitted on 30 September 2021. Hence the need for new arrangements to be identified in the EPA Regulation 2000 in relation to the fee payable for a DA now that a DA was required to be lodged on the NSW Planning Portal under cl 50(1)(d).
6. The Applicant submits that a DA is made when it is submitted to the NSW Planning Portal confirmed by receipt of a unique PAN as that is action which is within the control of an applicant, and consistent with the entitlement conferred on a person under s 4.12 of the EPA Act to make a DA. Lodgment referred to in cl 50(1)(d) as informed by subcl (9) is a separate process to making an application and not a pre-requisite to a DA being made. As the payment of a fee relies on the actions of others communicated through the NSW Planning Portal to find that a DA is not made until that fee is paid would result in an uncertain process which lacks transparency for an applicant. The Council's construction otherwise undermines the entitlement to make a DA conferred by s 4.12 and creates a mischief whereby there is a disconnect between what the Applicant did to make a DA and when it is 'lodged', which relies on the actions of others.
7. I consider the Council's construction of the statutory scheme under consideration gives purposive effect to all the provisions of the EPA Act and the EPA Regulation 2000 examined consistent with the statutory construction principles outlined above in [32],[41]-[42] and is to be preferred. A DA is made for the purposes of the Savings Provision in cl 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. The Applicant's approach does not give sufficient effect to the EPA Regulation 2000, particularly cl 50 which is a key provision for current purposes. I will expand on my reasons for this finding.
8. Section 4.12(1) states that a person may apply to a consent authority for consent to carry out development, subject to the regulations. Subsection (2) states that a single application which may be 'made' in respect of one or more types of development. Section 4.64 provides for regulations to be made in relation to who can make a DA, the documents required to accompany a DA and the fees for DAs. That a separate regulation-making power is identified for fees which the Applicant emphasised is of no particular moment. Part 6 of the EPA Regulation 2000 applies to all DAs. Clause 49 specifies who may make a DA. Clause 50(1) specifies what a DA must consist of in relation to form and information to accompany the application. A DA must be lodged on the NSW Planning Portal under subcl (1)(d).
9. The word "made" appears in several places in the EPA Act and EPA Regulation 2000, including s 4.12(2), 4.64(1)(b), and cll 49(1),(3), 50(1A). "Made" is not a term with a specific statutory meaning required beyond its ordinary use as both parties agreed. As the Council accepted "made" is synonymous with "apply" which is used in s 4.12(1). That acceptance about the term "made" is not conclusive, contrary to the Applicant's submission, of the operation of s 4.12. The entitlement to apply to a consent authority for a DA in s 4.12(1) is subject to the regulations.
10. The title of cl 50 while not part of the EPA Regulation 2000 does provide useful context in determining how a DA is made. There is no explicit statement in the EPA Regulation 2000 of when a DA is made. Arguably only once substantial compliance with cl 50(1) is achieved has a DA been made sufficient to enable its determination. One requirement is that "lodgment" of a DA is required by cl 50(1)(d) and must be read with subcl (9). A DA is not taken to be lodged until the fees notified to an applicant by means of the NSW Planning Portal have been paid. As the Council submitted Remath CA supports such a finding that a DA is made only when substantial compliance with the requirements of the EPA Act and EPA Regulation have been met. Remath CA was considering a much earlier version of the EPA Act. It considered s 77 of the former EPA Act and held to the effect that a development application is not made until the provisions of s 77(3) (requirement for an EIS) had been substantially complied with: Stein JA at [13]-[18]. My decision in South West Rocks was to similar effect at [32]-[34].
11. At issue in Ironlaw the case relied on by the Applicant was whether a DA had been lodged for the purposes of cl 113(2) of the EPA Regulation 2000 as that determined whether the deemed refusal period had commenced to run under subcl (a) which at that time referred expressly to the period commencing from when a DA was lodged with the consent authority. The Applicant relies on Ironlaw at [60] to attempt to show that 'making' and 'lodgment' are different and separate acts with different statutory construction consequences. Ironlaw addressed a different statutory context in order to answer a different question of construction focussed on the application of cl 113 of the EPA Regulation 2000. The focus of this judgment is cl 50 and I do not find it of much assistance in this context.

Clauses 51-52 of the EPA Regulation 2000

1. That a consent authority can reject a DA received within 14 days of its receipt (cl 51) does not undermine the Council's case on construction of cl 50(1), in light of subcl 50(9). The automatic response received from the NSW Planning Portal when a DA is submitted (Ex A Tab 2) refers to pre-lodgment review which is essentially what can happen under cl 51. The grounds for refusal of a DA received are specified in cl 51(1)(a)-(b) inter alia. That cl 51(3) refers to "made" in stating that an application is taken to never have been made has no particular legal consequence if the usual meaning of the word is applied. The word submitted could have as easily been used. The subsection simply confirms that no DA, which by then will have been allocated its unique PAN, exists if rejected under cl 50(1).

Fees

1. The Applicant was critical of how the applicable fee for a DA is identified and notified as part of its submission that lodgment of a DA was a separate process to making a DA, as such matters are outside the control of an applicant. To some extent that is correct but perhaps for cl 48 of the EPA Regulation 2000. That makes provision for an applicant to seek information about the fee payable from a consent authority before applying for a development consent although I note that no timeframe is specified.
2. The system for fee notification to an applicant is provided by cl 256(1) of the EPA Regulation 2000. The determination of a fee to accompany a DA must be made before, or within 14 days after the consent authority receives the application which will be via the NSW Planning Portal. Notice of the fee determination is supposed to be via the NSW Planning Portal although that did not occur on this occasion according to the affidavit of Mr Loether summarised above in [15] which refers to a telephone call from a council officer advising the Applicant's representative about the fee payable. The Council does not appear to have used the NSW Planning Portal in the manner required by cl 50(9) and cl 256(2) as advice about the fee payable was given by telephone. No issue arises from that fact in this case. There is no dispute the fee was paid by the Applicant on 8 October 2022.
3. The system for the payment of fees under the EPA Regulation 2000 is not seamless and is slightly unclear. There is no express obligation to pay a fee, and no timeframe is specified in cl 48, as the Applicant submitted. The consequences of not paying a fee are made abundantly clear. For example, cl 256(3) would apply and a council need not determine a DA if no fee is paid. Clause 50(1)(d) cannot be complied with. The scheme is sufficiently coherent for an applicant to understand how they can obtain information about the fee payable under cl 48, with a timeline for determination provided under cl 256(1). Other provisions for how the DA fee is to be calculated are included in Pt 15 of the EPA Regulation 2000, for example in cl 255. At most the making of a DA as required by cl 50(1), which includes lodgment under subcl (1)(d) (which in turn requires that a fee be paid), takes two weeks if the statutory provisions are complied with and an applicant takes no other action to seek out the fee payable.
4. In a similar vein to the submissions about fees being in the control of someone other than an applicant, cl 50(8) of the EPA Regulation 2000 was also said to indicate that lodgment is separate from making, because notification of lodgment is the responsibility of someone unspecified through the NSW Planning Portal and also a matter over which the Applicant has no control. That is correct. I agree with the Council's submission that whether a matter is within someone else's control other than an applicant in not obviously relevant to statutory construction. When all the various elements of the system for submitting and finalising a DA are taken into account, the fact that processes must be carried out through the NSW Planning Portal by persons unknown in order for a DA to be made does not mean that the provisions of cl 50(1) informed by subcl (9) should be construed differently to the Council's proposed construction.

Conclusion

1. The Applicant's approach does not have sufficient regard to the effect of the EPA Regulation 2000 in construing s 4.12. Lodgment as identified in cl 50 of the EPA Regulation 2000 does not connote a separate process but is essential to the making of a DA sufficient to enable its determination.
2. The Applicant referred to the Second Reading Speeches for the 2014 Amendment Bill and the 2017 Amendment Bill as a means of emphasising that the statutory intention of introducing the NSW Planning Portal was to increase efficiency, transparency and access to information and simplify the application process through the use of the NSW Planning Portal, as indeed is reflected in both documents. That level of generality does not assist in the construction of the detailed provisions before me and does not provide support for the Applicant's construction of the statutory scheme.
3. The Council's submission that an applicant submits the DA via the NSW Planning Portal and obtains a unique PAN number, lodges it when the fee is paid, and notified as required by cl 50(8), and makes the DA when there is substantial compliance with cl 50(1) reflects the statutory scheme in force in September-October 2021. Consequently the Applicant's DA was not lodged before the commencement of the GRLEP on 8 October 2021 and that LEP does apply to the DA.
4. The answer to question (a) is no.
5. Question (c) concerns a similar issue for the GRDCP (requiring construction of cl 1.7 of the GRDCP). The parties agreed that as the GRDCP 'hangs off' the GRLEP the same answer will apply to both instruments. The answer to question (c) is also No.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 August 2022