Hinkler Ave 1 Pty Limited v Sutherland Shire Council

Land and Environment Court (NSW)|2022-12-09|Before: Moore J, Ms J

TABLE OF CONTENTS Introduction The separate question Notice of Motion The 27 October 2022 hearing The 9 December 2022 hearing The cause of the separate question The relevant statutory provisions. Introduction The EPA Act The 2021 SEPP The 2000 Regulation The Statement of Agreed Facts The power to order the separate determination of issues The evidence The submissions for the Company The submissions for the Council Consideration Costs Orders

Introduction

Hinkler Ave 1 Pty Limited (the Company) has commenced an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by Southerland Shire Council (the Council) of a development application submitted by the Company through the NSW Planning Portal (the Portal) on 22 October 2021. The Company's development application sought approval for the demolition of existing structures and construction of a mixed use development comprising health service facilities, residential accommodation and basement parking, with Torrens Title and strata subdivision at 6‑20 Hinkler Avenue and 319‑333 Taren Point Road, Caringbah (the site).

The separate question Notice of Motion

On 12 September 2022, the Company's legal representatives filed a Notice of Motion seeking to have a separate question heard and determined antecedent to any further procedural steps being undertaken in the Company's Class 1 appeal. The Notice of Motion seeking such a hearing proposed questions to be determined in the following terms: 1 In accordance with rule 28.2 of the Uniform Civil Procedure Rules 2005, the Court orders that the following questions be determined prior to the s.34 conference or final hearing as separate questions of law: a. For the purpose of cl 2(1)(a) of Sch 7A of the State Environment Planning Policy (Housing) 2021, when was Development application No. DA21/125 'made'? b. Whether the State Environment Planning Policy (Affordable Rental Housing) 2009 applies to Development application No. DA21/125 as a result of cl 2(1)(a) of Sch 7A of the State Environmental Planning Policy (Housing) 2021?
The Notice of Motion was supported by an affidavit of Mr A Martinez, the Senior Development Manager at Landmark Group Australia Pty Ltd. Mr Martinez had been responsible for submitting, to the Portal, the Company's development application for its proposed development at the site.
On 23 September 2022, Robson J, as the List Judge, granted leave for the Company to rely on an Amended Notice of Motion. That which was sought by the Company's Amended Notice of Motion filed on 30 September 2022 was in the following terms: 1 In accordance with rule 28.2 of the Uniform Civil Procedure Rules 2005, the Court orders that the following questions be determined prior to the s.34 conference or final hearing as separate questions of law: a. For the purpose of cl 2(1)(a) of Sch 7A of the State Environmental Planning Policy (Housing) 2021 (as at 26 November 2021), was Development application No. DA21/125 'made' on 22 October 2021? b. If the answer to question 1(a) is 'no', for the purpose of cl 256 of the Environmental Planning and Assessment Regulation 2000, was the consent authority required to issue an invoice for the determined fee within two weeks of Development application No. 21/125 being uploaded onto the NSW Planning Portal, that is, by 5 November 2021? c. If the answer to question 1(b) is 'yes', in circumstances where the Council failed to comply with cl 256 of the Environmental Planning and Assessment Regulation 2000, was Development application No. DA21/125 'made' on 5 November 2021? d. Whether the State Environmental Planning Policy (Affordable Rental Housing) 2009 applies to Development application No. DA21/125 as a result of cl 2(1)(a) of Sch 7A of the State Environmental Planning Policy (Housing) 2021 (as at 26 November 2021)?
Robson J also made appropriate timetabling directions in preparation for the hearing on 27 October 2022. It is not presently necessary to set out the entirety of those timetabling directions. It is, however, appropriate to note that direction 3 required the filing of a Statement of Agreed Facts (SOAF) by 30 September 2022. Such a document was filed as directed and is reproduced later.
The Amended Notice of Motion was set down for hearing before me on 29 October 2022.

The 27 October 2022 hearing

Mr A Pickles SC for the Company and Ms J Reid, barrister, for the Council provided written submissions concerning the amended motion. The written submissions not only addressed the question of the appropriateness of the separate questions being set down for determination in advance of the Class 1 merit hearing, but also provided detailed submissions on the matters which would arise to be determined if these separate questions were set down for preliminary determination. The nature of the essential matter in dispute between the Company and the Council is later described in more detail.
At the hearing before me on 27 October 2022, I indicated that I was concerned that the then‑formulated, proposed multi‑part separate questions did not adequately provide any coherent basis for which separate determination might be appropriate.
It is to be noted that the Council did not agree with what the Company proposed should be the outcome if the multi‑part separate question was determined. Nonetheless, the Council supported the desirability of having the separate questions set down for hearing and determination.
I adjourned the hearing to permit the Company an opportunity to reformulate its proposed separate questions. On 2 November 2022, I granted leave for the Company to file a Further Amended Notice of Motion and set that down for hearing before me on 9 December 2022. On 4 November 2022, the Company filed the Further Amended Notice of Motion incorporating reformulated questions for which a separate hearing and determination was sought.
The terms of the separate question proposed in the Further Amended Notice of Motion were: 1 In accordance with rule 28.2 of the Uniform Civil Procedure Rules 2005, the Court orders that the following questions be determined prior to the s.34 conference or final hearing as separate questions of law: a. For the purposes of clause 256 of the Environmental Planning and Assessment Regulation 2000 (EP&A Regulation), was DA 21/1251 (development application) received by the Council on 22 October 2021? b. Was the Council required, within 14 days of receiving the development application, to do one of the following: i. Reject the development application pursuant to clause 51 of the EP&A Regulation; or ii. Notify the applicant of the applicable fee pursuant to clause 256 of the EP&A Regulation? c. For the purposes of clause 50(1)(d) of the EP&A Regulation, was the development application lodged on or before 26 November 2021? d. For the purposes of clause 2(1)(a) of Schedule 7A of State Environmental Planning Policy (Housing) 2021, was the development application made on or before 26 November 2021? 2 Any other order as the Court deems fit.

The 9 December 2022 hearing

At the commencement of the hearing on 9 December 2022, I put the proposition to Mr Pickles and Ms Reid that the real question which required answering (if there was to be a separate question) should be in the following terms: Is development application DA 21/1251 to be regarded as having been made on or before 26 November 2021 for the purpose of clause 2(1)(a) of Schedule 7A of State Environmental Planning Policy (Housing) 2021?
They agreed that, under the circumstances, the answer to that question would resolve the question of which of the 2009 or 2021 SEPPs was to be the environmental planning instrument pursuant to which the Company's development application was to be assessed. They advised that they were in a position to address that question immediately and I agreed to hear it forthwith.

The cause of the separate question

On 26 November 2021, State Environmental Planning Policy (Housing) 2021 (the 2021 SEPP) repealed and replaced State Environmental Planning Policy (Affordable Rental Housing) 2009 (the 2009 SEPP). The 2021 SEPP contains a savings provision (later set out) which, if satisfied for the Company's development application, would mandate that the application be assessed and then determined pursuant to the 2009 SEPP.
The Company had commenced the process for its development application with the Council by uploading a number of documents (including a completed development application form) to the Portal with that process commencing on 22 October 2021.
Over a period until early December 2021, further documents were uploaded to the Portal with respect to this application. On 9 December 2021, the Company paid its development application fee, a fee which had been notified to it by the Council on 2 December 2021.
The matter which is in dispute between the Company and the Council is, therefore, whether a proper understanding of the relevant clauses of the Environmental Planning and Assessment Regulation 2000 (the 2000 Regulation) as applied to the Company's development application are to be construed as engaging the savings provision in the 2021 SEPP, thus requiring the Company's development application (and therefore Class 1 appeal) to be determined on the basis of the requirements of the 2009 SEPP rather than the changed requirements in the 2021 SEPP.

Introduction

Although the Environmental Planning and Assessment Regulation 2021 has subsequently come into effect, as earlier noted, the 2000 Regulation was that which applied at the relevant times. It is therefore necessary to set out two provisions of the EPA Act, as well as the savings provision in the 2021 SEPP and the relevant provisions of the 2000 Regulation. These are set out below.

The EPA Act

The provisions of the EPA Act which require consideration are ss 9.45 and 9.46. The first is what is known as an open standing provision, one which permits the bringing of proceedings in Class 4 of the Court's jurisdiction to remedy or restrain any breach of the Act or regulations made pursuant to the Act. The second sets out the powers of the Court if such a breach is established.
In the present context, where the Company complains that the Council had not complied with the relevant time requirement set by cl 256(1) of the 2000 Regulation (later set out) to advise it of the fee payable for its development application, these provisions were available to the Company to apply to the Court for an order requiring the Council to rectify that breach of the 2000 Regulation. The relevant terms of ss 9.45 and 9.46 are: 9.45 Restraint etc of breaches of this Act (1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. 9.46 Orders of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

The 2021 SEPP

The 2021 SEPP savings and transition provisions are contained in Sch 7A. Clause 2(1)(a) of that Schedule provides that: 2 General savings provision (1) This Policy does not apply to the following matters - (a) a development application made, but not yet determined, on or before the commencement date, (b)‑(f) (2) The provisions of a repealed instrument, as in force immediately before the repeal of the repealed instrument, continue to apply to a matter referred to in subsection (1).
The commencement date was 26 November 2021.

The 2000 Regulation

The first relevant provision of the 2000 Regulation is that which sets out the requirements for lodging a development application. The requirements are set out in cl 50. Only portion of the requirements is engaged for present consideration. The relevant portions of cl 50 are set out below: 50 How must a development application be made? (1) A development application, other than an application for State significant development, must - (a) be in the form that is approved by the Planning Secretary and made available on the NSW Planning Portal, and (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, and (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 next relevant provision of the 2000 Regulation is cl 51, a provision which permits a Council to reject a development application. In this context, given that, as earlier noted, the interrelationship between concepts embodied in the words "received", "lodged" and "made" are of critical importance for determining this separate question, it is to be observed that the time limit imposed by this clause expires 14 days after a Council's receipt of the relevant development application. This provision was in the following terms: 51 Rejection of development applications (1) A consent authority may reject a development application within 14 days after receiving it if - (a) … or (b) the application does not contain all of the information that is specified in the approved form or required by the Act or this Regulation, or is not accompanied by all of the documents and information specified in Part 1 of Schedule 1 or required by the Act or this Regulation, or …
The third relevant provision of the 2000 Regulation is cl 56, which permits a consent authority to seek further information from an applicant. It was in the following terms: 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 made by means of the NSW Planning Portal, 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 4.15(1)(b)‑(e) of the Act or in any relevant environmental planning instrument. …
The fourth relevant provision of the 2000 Regulation is that which requires that specified information concerning a development application is to be made available publicly through the Portal. The information required to be made available is specified in the clause. In this context, it is to be noted that that which is required by cl 56(2)(b) is in similar but not identical terms to the requirement to provide information of the same nature as set out in Sch 1(2)(d) of the 2000 Regulation (later set out). The difference between the two requirements is that the requirement in Sch 1(2)(d) requires that the information be provided in an A4 plan whilst that which is required to be made available on the Portal, pursuant to cl 56(2)(b), has no such paper size requirement. Presumably, this is because the information provided on the Portal is electronic and capable of being size‑manipulated by using the zoom or shrink provisions of software used to access such documents. The terms of cl 56 are set out below: 56 Extracts of development applications to be publicly available (1) This clause applies to all development other than State significant development or designated development. (2) Extracts of a development application relating to the erection of a building - (a) sufficient to identify the applicant and the land to which the application relates, and (b) containing a plan of the building that indicates its height and external configuration, as erected, in relation to the site on which it is to be erected, if relevant for that particular development, are to be made available on the NSW Planning Portal.
The next relevant clause of the 2000 Regulation is cl 77, the second of the potentially relevant notice requirements set by the Regulation. For the purposes of this regulation, the triggering date creating the obligation to comply with its terms is the date of lodgement with the Council of the relevant development application. This clause was in the following terms: 77 Notice of development applications (1) As soon as practicable after a development application is lodged with the consent authority, the consent authority must - (a) publish notice of the application on the consent authority's website, and (b) give notice of the application to - (i) …, and (ii) in the case of a development application other than designated development - the persons that, in the opinion of the consent authority, own or occupy the land adjoining the land to which the application relates (unless the notice is in respect of an application for public notification development). (2) The notice must contain the following information - (a) a description (including the address) of the land on which the development is proposed to be carried out, (b) the name of the applicant and the consent authority, (c) a description of the proposed development, (d) …, (e) a statement that the development application and the documents accompanying the application, including any environmental impact statement, are publicly available on the consent authority's website for the period specified in Schedule 1 to the Act for that kind of development, …
The next relevant clause of the 2000 Regulation is cl 256, which requires a Council to determine the appropriate fee that is to be paid for undertaking the Council's statutory functions with respect to that development application. It is to be noted that the obligation to determine the fee requires that the time by which such a fee determination must be made is no later than 14 days after the receipt of that development application. This clause was in the following terms: 256 Determination of fees for development applications (1) The determination of a fee to accompany a development application must be made before, or within 14 days after, the consent authority receives the application. (2) A determination has no effect until notice of the determination is given to the applicant by means of the NSW Planning Portal. (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.
The final relevant provision of the 2000 Regulation is contained in Sch 1 to the Regulation. This schedule sets out a list of the documents which must accompany a development application. This list of documents is that which explains what is necessary to satisfy the terms of cl 56(2)(b) earlier set out. For present purposes, cl 2(1)(d) is the element of Sch 1 which is engaged for these proceedings. The relevant portion of the clause was in the following terms: 2 Documents to accompany development application (1) A development application must be accompanied by the following documents - (a) a site plan of the land, (b) a sketch of the development, (c) …, (d) in the case of development that involves the erection of a building, an A4 plan of the building that indicates its height and external configuration, as erected, in relation to its site (as referred to in clause 56 of this Regulation), …

The Statement of Agreed Facts

The parties had prepared a short Statement of Agreed Facts. That document is in the following terms: For the purposes of these proceedings, the parties agree upon the following facts: 1. On 22 October 2021, a representative of the Applicant caused Development application No. DA21/125 ('Development application') to be uploaded onto the NSW Planning Portal. 2. The Development application seeks consent for the demolition of existing structures and construction of a mixed‑use development comprising health service facilities, residential accommodation and basement parking with Torrens Title and stratum subdivision, at 6‑20 Hinkler Avenue and 319‑333 Taren Point Road, Caringbah NSW 2229 ('Site'). 3. The Respondent is a Council constituted under the Local Government Act 1993 for the local government area of the Sutherland Shire. 4. On 23 November 2021, the Respondent issued a request for additional information to the Applicant on the NSW Planning Portal. 5. On 26 November 2021, the Applicant issued a response to the request for information to be uploaded onto the NSW Planning Portal. 6. On 29 November 2021, the Respondent issued a further request for additional information on the NSW Planning Portal. 7. On 1 December 2021, the Applicant issued a response to the further request for additional information to be uploaded onto the NSW Planning Portal. 8. On 2 December 2021, the Respondent issued a notification requiring payment of the Development application fees on the NSW Planning Portal requiring payment of the Development application fees. 9. On 9 December 2021, the Applicant paid the Development application fees. Relevant Planning Instruments 10. State Environmental Planning Policy (Affordable Rental Housing) 2009 ('ARH SEPP') was in force at the time the Development application was uploaded on the NSW Planning Portal on 22 October 2021, and applied to the Site. 11. On 26 November 2021, the ARH SEPP was repealed by s10(1)(a) of the State Environmental Planning Policy (Housing) 2021 ('Housing SEPP') (Tab 2 of Exhibit AC‑01). 12. As at 26 November 2021, clause 2 of Schedule 7 of the Housing SEPP provided as follows: 2 General savings provision The former provisions of a repealed instrument continue to apply to the following‑ (a) a development application made, but not yet determined, on or before the commencement date, (b) a concept development application made, but not yet determined, on or before the commencement date, (c) a staged development application made subsequent to a concept development application approval granted on or before the commencement date, (d) a development consent granted on or before the commencement date, (e) an environmental impact statement prepared in compliance with an environmental assessment requirement that is‑ (i) issued by the Planning Secretary on or before the commencement date, and (ii) in force when the statement is prepared. 13. As at 30 September 2022, the relevant savings provision is contained within Schedule 7A of the Housing SEPP. 14. The operative regulation under the Environmental Planning and Assessment Act 1979 at the date on which the Development application was uploaded onto the NSW Planning Portal and at the date on which the Development application fees were paid was the Environmental Planning and Assessment Regulation 2000 ('Regulation 2000'). 15. The Regulation 2000 was repealed upon the commencement of the Environmental Planning and Assessment Regulation 2021 ('Regulation 2021') on 1 March 2022. 16. In accordance with cl.3 of Sch 6 to the Regulation 2021, the provisions of the Regulation 2000 continue to apply to "a development application...made but not finally determined before 1 March 2022".

The power to order the separate determination of issues

The power to hear and determine separate questions is given by r 28.2 of the Uniform Civil Procedure Rules (the UCPR). This rule is in the following terms: 28.2 Order for decision The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.
Determining that question as proposed to be addressed as matters separated from, and heard and determined prior to, the principal proceedings requires, in consideration of the Notice of Motion seeking that course of events, addressing whether it is appropriate to separate the issues proposed to be dealt with in a preliminary fashion from the principal hearing of the contested issues in the proceedings.
In Hallinan and Ors v Transport for NSW [2022] NSWLEC 119, Robson J summarised the matters arising for consideration in determining whether matters sought to be determined on a separated basis could be regarded as appropriate for such a process. His Honour said, at [31], that these included (footnotes omitted): (1) It is ordinarily appropriate that all issues in proceedings should be disposed of at one time; (2) The exercise of the discretion to make an order for the determination of a separate question should be approached with an appropriate degree of care or caution, as "[i]t sometimes happens that they may turn out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which they are intended to avoid"; (3) Since the passage of the Civil Procedure Act 2005 (NSW) ('CP Act), it has also been observed that "the Court should take a more interventionist role in identifying and separating important issues which can resolve significant parts of the litigation expeditiously"; (4) An order is likely to be appropriate where it can clearly be seen that it will facilitate the just, quick and cheap resolution of the proceedings or the central issues in the proceedings, so as to give effect to s 56 of the CP Act; (5) It is for the party seeking the order to show to the Court that a separate decision of a question is appropriate; (6) The factors that have previously been found to support the making of an order for the resolution of a separate question include where such an order may contribute to first, the prompt disposal of crucial issues in the litigation (or the whole action); second, the saving of time and cost by narrowing the issues in dispute; and third, the potential settlement of the litigation. (7) By contrast, an order for determination of a separate question is unlikely to be appropriate in circumstances where first, there are intertwined issues of fact or law, and the separate question is likely to result in fragmentation of the proceedings; second, there is likely to be significant overlap between the evidence adduced on the separate question and any residual questions; and third, the determination of a separate question is likely to involve issues as to the credibility of witnesses, whose evidence is likely to be material to the remaining issues in dispute. (8) One instance where it may be appropriate to determine a separate question even if it will not resolve all the issues in dispute is where there is a strong prospect that the parties will agree upon the result when the core of the dispute has been decided or if the decision will obviate unnecessary and expensive hearings of other questions; and (9) While the decision to order separate questions is ultimately one for the Court, the attitudes of the parties are relevant to the exercise of the discretion to make an order.
It is to be noted that the above list is not exhaustive and that other matters may be relevant, depending on the facts and circumstances arising in a particular instance.
In addition to the matters for consideration set out by Robson J in the above list, it is also appropriate to note that, in Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103, Ward JA (as the President then was) expressly adopted, at [91], the cautionary approach explained by Einstein J in Idoport Pty Limited v National Australia Bank Limited (15) [2000] NSWSC 1215 where his Honour had said, at [7(6)] (citations omitted): The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings as anticipated, but often has the reverse effect, merely causing added delay and expense to the resolution of the litigation. Thus, before an issue is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings.
In the present circumstances, although determination of the separate questions was not guaranteed to be dispositive of the proceedings, it seemed to me that there were not likely to be significant merit issues and, certainly, no issues of compliance with any relevant development standards. I directed that the Council confirm to me, prior to midday on Wednesday 14 December 2022 whether it accepted that proposition. The Council's legal representative subsequently advised, by the nominated time, that: … apart from the duration of the requirement for the affordable housing component of the development to be used for that purpose (10 versus 15 years), there are no significant or substantive differences in the merit considerations under either of the relevant affordable housing provisions.
Given this position and the fact that the Class 1 proceedings had yet to go through the conciliation conference provided for in s 34 of the Land and Environment Court Act 1979, I was satisfied that the determination of the separate question, set out at [15], had very significant potentiality to be dispositive of the proceedings in the sense that there was a good possibility that any merit issues might be able to be resolved by agreement.
Under those circumstances, I was satisfied that it was appropriate to have the matter set out in [15] determined as a preliminary issue. As the parties were also prepared to address that question forthwith, as earlier noted, I proceeded to hear submissions on that question.

The evidence

The evidence comprised: 1. an affidavit of Ms Ashleigh Cowper, a solicitor employed by the Company's legal representative. This affidavit was deposed on 30 September 2022. This affidavit was read; * Ms Cowper also deposed a further affidavit on 26 October 2022. This affidavit had had various plans relevant to the Company's development application annexed to it. This affidavit was not read. However, various of the plans that were annexed to this affidavit were tendered. The details of these are reproduced below: * Exhibit A ‑ site plan DA100 * Exhibit B ‑ plans DA301 to 305 (excluding DA300) * Exhibit 1 ‑ plan DA300 * Exhibit 2 ‑ plans DA500 and DA501; 1. Although an affidavit had been deposed on 13 September 2022 by Mr Martinez, this affidavit was not read. However, a folder of documents had been exhibited to this affidavit, with two of those being tendered. The first of them, relevantly containing a list of documents uploaded to the Portal concerning the Company's development application, became Exhibit C. This list covered the period commencing on 22 October 2021 and expiring in December 2021. The second tendered element of the exhibit to Mr Martinez's affidavit comprised a printout of communications between the Council and the Applicant via the Portal. Elements of these communications will later require consideration. This document became Exhibit D.
Ms Cowper was not required for cross‑examination.

The submissions for the Company

Mr Pickles explained that the sole difference of substance concerning the residential apartment development for which the Company seeks consent is confined to the length of time for which the Company would be required to dedicate a portion of the units in the proposed development as affordable rental apartments. The mandated dedication period required by the 2009 SEPP is a significantly shorter one than that in the 2021 SEPP. The number of units required to be dedicated for affordable rental housing purposes does not vary as a result of the provisions of the 2021 SEPP replacing those of the 2009 SEPP.
He also advanced the proposition that no amendments of any potentially relevant significance would need to be made to the design of the Company's proposed development, if the 2021 SEPP applied, rather than the 2009 SEPP for which the Company contends.
Mr Pickles submitted that I should be satisfied that, unlike the position dealt with by Preston CJ in Pyramid Consulting Pty Ltd v Georges River Council [2022] NSWLEC 141, there were no differing development standards applicable to the Company's proposed development arising from resolving the issue as to which state environmental planning policy was engaged for the assessment and determination of the Company's development application.
As he and Ms Reid had provided written submissions on the merit of the separate questions, he proposed that it was not only appropriate that I approve the determination of the separate question set out at [15], but that I should proceed to hear it on that day and determine it. As earlier noted, I agreed to do so.
Mr Pickles submitted that the plans which are identified as Exhibits A and B in these proceedings, and which were provided to the Council on 22 October 2021, between them satisfied the requirements of Sch 1, cl 2(b) and cl 56(2)(b) of the 2000 Regulation (the fact that these plans were not provided in A4‑size being, as Ms Reid accepted, irrelevant as a matter of substance).
I have earlier noted that the development application fee was not determined and notified until 3 December 2021 (the seventh day after 26 November 2021, the relevant operative date for the savings provision set in the 2021 SEPP). Mr Pickles submitted that the obligation imposed on the Council by cl 256(1) of the 2000 Regulation was triggered by the uploading on the Portal of the relevant plans (in Exhibits A and B) which should be taken to comply with the requirement in Sch 1, cl 2(d) of the 2000 Regulation as including: (d) in the case of development that involves the erection of a building, an A4 plan of the building that indicates its height and external configuration, as erected, in relation to its site (as referred to in clause 56 of this Regulation),
As a consequence, Mr Pickles submitted that a purposive understanding of the regime established by the 2000 Regulation should not act as a barrier to the conclusion that the Company's development application had been lodged (and therefore to be regarded as "made") before 26 November 2021. The failure of the Council to discharge its mandatory obligation set by cl 256(1) of the 2000 Regulation should not be permitted to stand in the way of the conclusion that the Company's development application had been made, but not determined, on or before 26 November 2021 and was thus preserved to be assessed and determined pursuant to the 2009 SEPP, rather than the 2021 SEPP.
He submitted that the Council's dilatory conduct in failing to comply with the requirements of cl 256 of the 2000 Regulation should not deprive the Company, through no fault of its own, from having the advantage of the savings provision in the 2021 SEPP apply to its development application. Doing so would unreasonably deprive the Company of the more beneficial, shorter affordable housing preservation period available under the 2009 SEPP.
He further submitted that the Company had substantially and sufficiently complied with the requirements of the 2000 Regulation by 26 November 2021 so that the Company's development application should be held to have been made by that date.

The submissions for the Council

Ms Reid submitted that the plans which satisfied the requirements of Sch 1, cl 2(d) of the 2000 Regulation (Exhibit 2) were those which were uploaded to the Portal on 1 December 2021 (Exhibit D). Unlike the plans in Exhibits A and B relied upon by Mr Pickles, Ms Reid submitted that only these plans (uploaded after 26 November) satisfied, in a concise and comprehensive fashion (setting aside that they were not A4 in size, a matter which was accepted to be irrelevant as being a matter of form not substance), the requirement in Sch 1, cl 2(d) of the 2000 Regulation.
This meant, she submitted, that the obligation to determine and notify the development application fee as required by cl 256(1) of the 2000 Regulation was not triggered until these plans, which were compliant with Sch 1, cl 2(d) of the 2000 Regulation, were uploaded to the Portal on 1 December 2021.
The analysis which, she submitted, founded the proper understanding of what had transpired as a result of the further information requests made by the Council pursuant to cl 54 of the 2000 Regulation meant the Company's development application could not be regarded as having been lodged on or before 26 November 2021.
This position arose because of the operation of cl 50(9) of the 2000 Regulation. As the development application had not been lodged on or before 26 November 2021, it could not be regarded as having been "made" for the purposes of the savings provision in Sch 7A, cl 2(1)(a) of the 2021 Regulation and, therefore, was not protected by that savings provision so as to require it to be determined pursuant to the 2009 SEPP.

Consideration

It is clear that the Council did not regard the plans in Exhibits A and B as satisfying the requirement of Sch 1, cl 2(d) of the 2000 Regulation. That is evident from the exchange between a council officer and Mr Martinez, as is set out in Exhibit D. It is clear that the Council accepted that the plans in Exhibit 2, uploaded to the Portal on 2 December 2021, were accepted by the Council as satisfying these provisions. The two plans that comprise Exhibit 2 which were uploaded on that date more precisely satisfy (by the inclusion of the full suite of elevations of the whole of the Company's development on Plan DA501 as well as a site plan, DA500). The requirements of Sch 1, cl 2(d) of the 2000 Regulation.
Provision of Exhibit 2 triggered, from the Council's perspective, the obligation pursuant to cl 256(1) of the 2000 Regulation to notify the Company of the quantum of the necessary development application fee. Such determination being made within the 14 days after the Council considered that it had "received" the entirety of what was needed to comprise the Company's development application (to use the word in cl 256 of the 2000 Regulation).
The position adopted by the Council with respect to plans that were capable of satisfying the requirements of Sch 1, cl 2(d) of the 2000 Regulation are clearly those uploaded to the Portal on 1 December 2021. The plans in Exhibits A and B were not of a nature that could be accepted as meeting the description of what was required by Sch 1, cl 2(d), in particular as Exhibit B, comprised a series of plans, including various elevations of a number of the separate buildings for which consent was sought to be erected on the site.
It is clear that the notification requirements in cl 56(2)(b) particularly, and, by inference, cl 77(1)(b)(ii) and (2)(e), in combination, demands the availability of such information in a concise visual form as required by the schedule to enable satisfaction of cl 56(2)(b).
The position advanced by Ms Reid was that the Company's development application was not properly to be regarded as having been lodged until the determined application fee was paid (on 13 December 2021) with that payment setting aside the barrier to perfection of lodgement created by cl 50(9). Her submission is correct for the reason set out below.
Although a decision given in the context of savings provisions arising from the making of a new local environment plan and the savings provisions in that new plan, the analysis of Pain J in Commitment Pty Ltd v Georges River Council (No 2) [2022] NSWLEC 94 (Commitment) concerning the relevant steps in the process necessary to regard a development application as being "made" are the same as those which here require consideration. For reasons fully explained by her Honour in Commitment, a development application can only be regarded as having been "made", for such a savings clause purpose, after the fee payable for such a development application has been paid. This is because, for the reasons her Honour explained, it is the completion of lodgement of a development application which is to be regarded as its making for such transitional protection to be afforded to it.
For me to hold otherwise, I would need to be satisfied that her Honour's reasoning and conclusion were clearly wrong. I am not so satisfied ‑ to the contrary, I am satisfied that her Honour's conclusion was the correct one.
On the timing analysis of the various steps here relevant as earlier set out, it is clear that the Company's development application was "made" on 9 December 2021. As a consequence, the question set out by me at [16] is to be answered "no".
However, against the possibility that the above conclusion is incorrect and the plans in Exhibits A and B are to be regarded as satisfying the requirements which would trigger the obligation to determine the application fee payable by the Company by no later than 4 November 2021 (and the Council failed to do so), I turn to what might be the consequences of this.
If, in the opinion of the Company, determination of the amount of the fee (and the notification of this amount to the Company to permit its payment) was time critical (as subsequently became the position by the repeal of the 2009 SEPP and its replacement by the 2021 SEPP ‑ the environmental planning instrument containing the savings provision by which the Company seeks to have its development application protected), the remedy for this lay in the hands of the Company.
There is no evidence that the Company regarded the plans in Exhibits A and B as satisfying Sch 1, cl 2(d) of the 2000 Regulation. There is certainly no communication in evidence from the Company to the Council that nominated those plans for that purpose. Indeed, the communication on the Portal from Mr Martinez on 1 December 2021 (Exhibit D) is in response to a specific request from a council officer for "A copy of the site and elevation plans in an A4 document for neighbour notification". Mr Martinez made no complaint that these had already been provided.
There is, therefore, nothing unreasonable in the Council seeking compliance, to its satisfaction, with Sch 1, cl 2(d) of the 2000 Regulation, by requesting, from the Company plans which did satisfy those requirements. This "request for further information" process (including the specific request for the plans which became Exhibit 2) is a process expressly authorised by cl 54 of the 2000 Regulation. The fact that the Council did not exercise the right given by cl 51 of the 2000 Regulation to reject the Company's development application does not automatically mean that the requirement to determine, pursuant to cl 256(1) of the 2000 Regulation, the development application fee payable by the Company, and to notify that fee to the Company within 14 days, was triggered.
Although, in Cranky Rock Road Action Group Inc & Anor v Cowra Shire Council & Ors (2006) 150 LGERA 81; [2006] NSWCA 339 (Cranky Rock Road), Tobias JA rejected the proposition that the failure to provide a statement of environmental effects (a document also required by Sch 1, cl 2 of the 2000 Regulation) with the development application in the circumstances of that case, he did so for reasons described, at [73] and [80], because a statement of environmental effects was authored by a development proponent and should be regarded as a self‑serving document rather than one which was objectively founded and, therefore, necessary to be provided to that consent authority in order to complete the provision of the necessary documents so that that development application could be regarded as having been received.
In doing so, Tobias JA distinguished the position with which he was dealing from that which had been considered by Basten JA in Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 (Kindimindi). In Kindimindi, Basten JA explained this, at [33] and [34], in the following terms: 33 Pursuant to clause 50(1)(a) of the Environmental Planning and Assessment Regulation 2000 (NSW) ("the EP&A Regulation") a development application must contain prescribed information and be accompanied by specified documents, as identified in Part 1 of Schedule 1 of the EP&A Regulation. Clauses 1 and 2 prescribe, respectively, the information to be included in the development application and documents to accompany the development application. In part, the accompanying documents are designed to provide a better indication, or at least an indication in a different form, of information required to be contained in the application. Thus, the first two specified documents are: "(a) a site plan of the land, (b) a sketch of the development." 34 However, other accompanying documents, including a statement of environmental effects (par (c)) tend to serve a different purpose, namely providing information as to effects of a development which will be relevant to the matters to be considered by the consent authority under s 79C of the EP&A Act. In other words, some of the accompanying documents may properly be understood as providing information required for the identification of the development, whereas other documents fall into a different category. To that extent, there is force in the argument put by the Appellant that in identifying the development to which consent is being given, it will often be appropriate (and even necessary) for the consent authority to refer specifically to those accompanying documents which identify the nature and style of the proposed development.
In the present circumstances, concluding that the failure of the Company to provide the plan mandated by Sch 1, cl 2(d) of the 2000 Regulation until after 26 November 2021 and only satisfying that requirement by Exhibit 2 being uploaded to the Portal on 1 December 2021 was entirely consistent with the reasoning in Kindimindi and, equally importantly, consistent with the reasoning in Cranky Rock Road (because the plan was an objective, mandated document and not a self‑serving one to be ignored for the reasons explained in Cranky Rock Road).
On this basis, there was no failure by the Council to determine and advise the development application fee payable by the Company, as that determination and notification was clearly made within the 14‑day period after Sch 1, cl 2(d) was satisfied as nominated by cl 256 of the 2000 Regulation.
The Company now seeks that what it alleges is the failure, on its time sequence, of the Council to fulfil its obligation to determine and notify the development application fee pursuant to cl 256(1) of the 2000 Regulation should cause me to conclude that the Company's development application was "made" on or before 26 November 2021 and thus protected to be determined under the 2009 SEPP. That approach is to be rejected as contrary to the reasoning of, and conclusion reached by, Pain J in Commitment.
I have earlier set out the terms of ss 9.45 and 9.46 of the EPA Act. On the Company's case founded on the plans at Exhibits A and B (a proposition I have rejected), by no later than 5 November 2021, the Council was in breach of its obligation created by cl 256(1) of the 2000 Regulation. Such a breach could have been remedied by the Company exercising its right pursuant to s 9.45 of the EPA Act and approach to the Court to seek an order (to the effect of mandamus) through Class 4 proceedings to require the Council to determine and advise the Company of the development application fee payable. That course being open to the Company from 5 November 2021 (such an application capable of being dealt with urgently by the Court, if a proper reason for doing so was demonstrated) was not adopted by the Company.
The Company therefore became the architect of its own fate triggered by the repeal and replacement of the 2009 SEPP by the 2021 SEPP.
It therefore follows that the question, addressed and determined by me is in the simplistic form set out at [16] and accepted by the parties as being the appropriate one for determination, is dispositive of the Company's Further Amended Notice of Motion. Therefore, the Further Amended Notice of Motion is to be dismissed.

Costs

It is appropriate, these being Class 1 proceedings, that costs be reserved.

Orders

As I have found, for the reasons earlier explained, that the Company's development application is not protected by the savings provision in the 2021 SEPP, the orders of the Court necessary to finalise the Company's application for a separate question determination are: 1. Order pursuant to Pt 28 r 28.2 of the Uniform Civil Procedure Rules 2005 that the following question be determined separately from any other question arising in the proceedings: Is development application DA 21/1251 to be regarded as having been made on or before 23 November 2021 for the purpose of cl 2(1)(a) of Sch 7A of the State Environmental Planning Policy (Housing) 2021? 1. In answer to the separate question in order (1): No. 1. Costs of the Further Amended Notice of Motion are reserved; and 2. The exhibits are returned.

Amendments 28 March 2023 - (1) Order pursuant to Pt 28 r 28.2 of the Uniform Civil Procedure Rules 2005 that the following question be determined separately from any other question arising in the proceedings:

Is development application DA 21/1251 to be regarded as having been made on or before 23 November 2021 for the purpose of cl 2(1)(a) of Sch 7A of the State Environmental Planning Policy (Housing) 2021?

(2) In answer to the separate question in order (1):

(3) Costs of the Further Amended Notice of Motion are reserved; and

Orders amended pursuant to r 36.17 of the UCPR on 28 March 2023. 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: 28 March 2023

Environmental Planning and Assessment Regulation 2000(NSW)

(2006) 143 LGERA 277

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