The application of section 2.7 of SEPP (Resilience and Hazards)
Part of the land, being 0.051m2 adjacent to the western end of the northern boundary (Exh 5), is mapped as littoral rainforest on the Coastal Wetlands and Littoral Rainforests Area Map. SEPP Resilience and Hazards commenced on 1 March 2022 and the proposal was lodged on 13 July 2022. SEPP Resilience and Hazards applies to the proposal at s 2.3.
Section 2.7 of SEPP Resilience and Hazards is in the following terms:
2.7 Development on certain land within coastal wetlands and littoral rainforests area
(1) The following may be carried out on land identified as "coastal wetlands" or "littoral rainforest" on the Coastal Wetlands and Littoral Rainforests Area Map only with development consent -
(a) the clearing of native vegetation within the meaning of Part 5A of the Local Land Services Act 2013,
(b) the harm of marine vegetation within the meaning of Division 4 of Part 7 of the Fisheries Management Act 1994,
(c) the carrying out of any of the following -
(i) earthworks (including the depositing of material on land),
(ii) constructing a levee,
(iii) draining the land,
(iv) environmental protection works,
(d) any other development.
Note -
Clause 2.14 provides that, for the avoidance of doubt, nothing in this Part -
(a) permits the carrying out of development that is prohibited development under another environmental planning instrument, or
(b) permits the carrying out of development without development consent where another environmental planning instrument provides that the development may be carried out only with development consent.
(2) Development for which consent is required by subsection (1), other than development for the purpose of environmental protection works, is declared to be designated development for the purposes of the Act.
Subdivision of land is development, pursuant to s 1.5(1)(b) of the EPA Act.
Section 6.2(1) of the EPA Act defines subdivision as follows:
subdivision of land means the division of land into 2 or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition.
The applicant submitted that the proposed subdivision would only be "carried out on land" [italics added] (citing the terms of the provision) if the subdivision divided the area mapped as littoral rainforest across two future lots. The area mapped as littoral rainforest is instead located on a proposed single lot and as such the provision is not triggered on the proper construction of s 2.7 because there are no works on the area mapped as littoral rainforest.
The applicant submitted that the aims of Chapter 2 of SEPP Resilience, at s 2.1, should be kept in mind when construing s 2.7. It is not necessary for the regime for designated development to apply to an application where the unity of the environmentally sensitive land is being maintained.
In the alternative, the applicant submitted that the area of land mapped as littoral rainforest on the site is so insignificant as to make the issue de minimis.
The Council submitted that the proposal for the subdivision of the site is "any other development" under s 2.7(1)(d) of SEPP Resilience and Hazards. The subdivision of the site is development, pursuant to s 1.5 of the EPA Act and consent is required for that development, under LEP 2012. The proposal for the subdivision of the site is, as a consequence of being caught by s 2.7(1), designated development under s 2.7(2) and as such, an environmental impact statement is required pursuant to s 4.12(8) of the EPA Act because the development is declared to be designated development by an EPI, pursuant to s 4.10(1) of the EPA Act.
The Council submitted that the subdivision of the land incorporates the whole of the site. The area mapped as littoral rainforest is part of the subdivision. Had the area mapped as littoral rainforest been carved out of the subdivision proposal, then the applicant's argument has substance. Instead, the area mapped as littoral rainforest is to form part of one of the subdivided lots and as such, the application requires an EIS as a jurisdictional prerequisite to the grant of consent.
I accept the Council's submissions based on the construction at [35] and for the reasons given at [36].
[2]
Conclusion
The applicant submitted that if I find that the proposal is designated development pursuant to s 2.7(2) of SEPP Resilience, the Court should grant development consent for the development, other than the proposed subdivision (as per s 4.16(4) of the EPA Act). The applicant requested an interim judgment be handed down with a direction that the parties prepare a revised set of agreed conditions that omit any reference to the approval of subdivision or subdivision works. The Council agreed with this course on the basis that the proposed development is then a dual occupancy development, which is an innominate use permissible in the zone with consent and a dual occupancy development is not on the land mapped as littoral rainforest.
[3]
Directions
The Court directs that:
1. The parties are directed to file a revised set of agreed conditions that omit any reference to the approval of subdivision or subdivision works, within two weeks of the date of this judgment.
Susan O'Neill
Commissioner of the Court
[4]
Amendments
22 March 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip" rule), typographical errors are corrected at paragraphs 23 and 37 of the judgment.
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: 22 March 2024
Parties
Applicant/Plaintiff:
Investments NQ Pty Ltd
Respondent/Defendant:
Tweed Shire Council
Cases Cited (4)
Owner's consent
A development application may be made by the owner of the land, or another person, with the written consent of the owner of the land, at s 23(1) of the Environmental Planning and Assessment Regulation 2021 (Regulation 2021). The public reserve is owned by Crown Lands and the proposal includes a driveway over the public reserve. The requirement is a jurisdictional pre-requisite to a valid application.
The parties disagreed on whether the letter from Kate Taylor A/ Snr NRM Officer at the Department of Planning, Housing and Infrastructure - Crown Lands gives owner's consent for the lodging of the application. According to the applicant, owner's consent for the works on the public reserve is cured by the terms of the letter. According to the Council, the letter is conditional, and the consent is not operative until certain things are done, including the Council obtaining an easement over the proposed water infrastructure within the public reserve.
The letter is in the following terms:
Consent is granted by the delegate of Minister for Lands and Property to the lodging of a development application under the Environmental Planning and Assessment Act 1979, and other associated applications required under other legislation, for the development described above.
This consent is subject to the following:
(1) This Consent is given without prejudice so that consideration f the proposed development may proceed under the Environmental Planning and Assessment Act 1979 and any other relevant legislation.
(2) This Consent does not imply the concurrence of the delegate of the Minister for Land and Property for the proposed development, or the issue of any necessary lease, licence or other required approval under the Crown Land Management Act 2016; and does not prevent the Department of Planning and Environment - Crown Lands from making any submission commenting on.
(3) This Consent will expire after a period of 12 months from the date of this letter if not acted on within that time. Extensions of this consent can be sought.
(4) The Minister reserves the right to issue Landowner's Consent for the lodgement of applications for any other development proposals on the subject land concurrent with this Landowner's Consent.
(5) Irrespective of any development consent or any approval given by other public authorities, any work or occupation of Crown Land cannot commence without a current tenure from the Department of Planning, Housing and Infrastructure - Crown Lands or Tweed Shire Council as the Crown Land Managers authorising such work or occupation.
(6) Tweed Shire Council obtaining an easement over the water infrastructure in-front of the proposed development on the Crown Land reserve 1002208.
This letter should be submitted to the relevant consent or approval authority in conjunction with the development application and/or any other application.
It is advised that the Department of Planning, Housing and Infrastructure - Crown Lands will inform Tweed Shire Council of the issue of this Landowner's Consent and will request that Tweed Shire Council notify the Department of Planning, Housing and Infrastructure - Crown Lands of the subsequent development application, for potential comment, as part of any public notification procedure.
You are required to forward to Department of Planning, Housing and Infrastructure - Crown Lands a copy of any development consent or other approval as soon as practical after that consent or approval is received.
If any modifications are made to the application (whether in the course of assessment, by conditions of consent, or otherwise), it is your responsibility to ensure the modified development remains consistent with this Landowner's Consent.
The applicant noted that this is a proforma letter. According to the applicant, the letter is not a promise of future consent, but instead is written in the present tense, "consent is granted". The purpose of the letter is so that consideration of the application may proceed, without prejudicing Crown Lands from making an objection to the proposal. The letter makes a clear distinction between what happens under the EPA Act and what happens under its property rights. Crown Lands consents to the making of the application but has not given consent to carry out works under property law. The requirement at (6) for the Council to obtain an easement is not a pre-condition to the granting of consent to make an application, it is instead a requirement after the granting of development consent to the proposal and prior to works commencing.
The applicant also relies on an email sent by Shannon Powell, Group Leader Property Management, Land and Asset Management - North Coast, Crown Land & Public Spaces, Department of Planning, Housing and Infrastructure, dated 29 February 2024 (Exh E) responding to an inquiry by the applicant's solicitor as to whether the letter constitutes a valid owner's consent for the lodging of the application. The email includes the following:
The LOC [Landowner's Consent to lodge a development application] is not a conditional approval to the lodgement of the development application and does not require the easement being in place before development consent is granted by the relevant authority…
If the Development consent is granted, then either Council or the Applicant may lodge a licence application with our office, prior to the commencement of the approved works and finalisation of the compulsory acquisition process. If the compulsory acquisition for an easement is finalised, at a time after consent is granted and before works commence, a Licence will not be required.
The Council submitted that the letter is conditional upon a number of matters, and those matters are preconditions to the consent to lodge the application. The Council submitted that a consent that is not operative until the happening of future events is not a consent at all: Mulyan Pty Ltd v Cowra Shire Council & Anor [1999] NSWLEC 212; (1999) 105 LGERA 26 at [33]. A plain reading of the letter says it is not operative until certain things are done, and consent is dependent on those things occurring, as evidenced by the words, "subject to…". Condition 6 requires an easement over the water infrastructure as part of the pre-conditions to the grant of owner's consent to the lodging of the application. The applicant cannot rely on the email as confirming owner's consent under s 23(1) of the Regulation 2021. The commissioner's decision in D L Newport Pty Ltd v Northern Beaches Council [2017] NSWLEC 1661 at [29] is distinguishable because the letter in that case used different words, qualifying that the letter was subject to conditions, whereas the letter in this matter is drafted so that the consent is subject to conditions.
The applicant submitted that the consent of the owner, having been given, is irrevocable: Rose Bay Afloat Pty Ltd v Woolahra Council [2002] NSWLEC 208 at [81]-[82]. Therefore, the subsequent amendment of the application on 26 February 2024 does not affect the status of the consent given on 12 January 2024.
I accept the applicant's submissions regarding the letter from Department of Planning, Housing and Infrastructure - Crown Lands dated 12 January 2024 ("the letter", attached to Exh E) being consent for the lodging of the application for the reasons set out at [23].