Ironlaw's response
49Ironlaw accepts that prior to the provision of the EIS to the Council on 5 February last, the development application lodged on 2 July 2012 was incomplete, a position that pertained until 5 February 2013 when the EIS was provided to the Council. Nonetheless, it denies the contention on behalf of the Council that the absence of the EIS at the time at which its appeal to the Court was filed in September last, the lodgement of its development application was insufficient "to engage the deemed refusal period" (a reference to the terms in which [13] of the Council's written submissions were framed).
50There can be no doubt that those documents identified in the EPA Act or the Regulation as being required to accompany a development application are significant in the context of considering and determining a development application. Indeed, authority makes clear that the determination of a development application in the absence of an environmental impact statement, in the case of designated development, or in the absence of a species impact statement required by s 78A(8)(b), would be invalid (Helman v Byron Shire Council (1995) 87 LGERA 349; Remath Investments; Cranky Rock Road; McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504). As Basten JA observed in McGovern at [189]:
"It is well-established that, absent substantial compliance with such statutory prescriptions, there can be no valid determination of such an application."
51However, Ironlaw correctly submits that none of the authorities to which reference has been made establishes that a development application which, when lodged, is not accompanied by an environmental impact statement or other document identified in the EPA Act or Regulation, is invalid or ineffective for all purposes. As Spigelman CJ observed in Currey v Sutherland Shire Council [2003] NSWCA 300; (2003) 129 LGERA 223 at [35]:
"I see very little, if any, scope in this legislative scheme for the concept of a "valid" application. Citizens are entitled to apply to authorities for whatever they like. The relevant prohibition in the legislative scheme is found in s 76A, which prohibits development without consent, where an environmental planning instrument provides that development may not be carried out except with consent. There is no relevant prohibition, express or implied, which impinges upon the application making process."
52In Remath Investments Stein JA eschewed describing as "invalid" a development application for designated development that, at the time of lodgement, was not accompanied by an environmental impact statement. At [14] his Honour said:
"That is not to say that a development application is invalid or void if it is not accompanied by, for example, an EIS, SIS or the prescribed fee, at the very time of its lodgement with the consent authority. Substantial compliance may be satisfied by the later accompaniment of the required document ... ".
53Further, Ironlaw submitted that none of the authorities to which reference has been made directly supported the contention made by the Council that an application made for designated development unaccompanied by an environmental impact statement at the time of lodgement, had the consequence that the provisions of s 82(1) of the EPA Act were not engaged, at least until such time as an environmental impact statement had been provided to the consent authority. Reliance by the Council upon the decision in Remath Investments to contend otherwise was, so it was submitted, misplaced. In my opinion, there is substance in Ironlaw's submission.
54The legislative provisions considered in Remath Investments are important to be noticed when seeking to apply the decision of the Court of Appeal in that matter. Development applications for consent to designated development had been lodged with the appellant council. Although accompanied by a document referred to as an "environmental impact statement", that document was not prepared in accordance with the Regulation as in force at that time. After the development application had been lodged but prior to its determination by this Court upon remitter from the Court of Appeal, the EPA Act was amended. However, transitional provisions had been inserted into the Regulation, as then in force, including cl 11 of the transitional Regulation which provided that "any development application made, but not determined" at the appointed day for commencement of the amending legislation, should be determined under the provisions of the unamended EPA Act. An environmental impact statement purporting to comply with the requirements of the Act and Regulation was not provided until after the amending legislation had come into effect. The question that fell for determination was whether, in the context of the unamended Act and cl 11 of the transitional Regulation, the development application had been "made" prior to the commencement of the amending legislation.
55Section 77(3) of the unamended EPA Act relevantly provided:
"(3) A development application shall:
(a) be made to the consent authority;
(b) be made in the prescribed form and manner;"
Paragraphs (c) to (e) of s 77(3) then identified the documents that were required to accompany the development application, together with the requirement that the application be accompanied by a fee. In the context of s 77(3)(b), it was accepted that paragraphs (c) to (e) of the subsection identified the "manner" of making a development application.
56The Court of Appeal determined that the development application by Remath Investments had not been "made" at the time at which the amending legislation took effect. It held that reference to an application being "made" within the meaning of cl 11 of the transitional Regulation necessitated reference to the provisions of s 77(3)(b) of the unamended EPA Act. That required an application be "made in the prescribed form and manner" and as the manner of making the application had required the provision of an environmental impact statement prepared in accordance with the unamended Regulation, the application had not been made in accordance with the subsection as at the date upon which the amending legislation took effect (Stein JA at [15]-[18] and Fitzgerald JA at [48]-[50]).
57The statutory language central to the issue in Remath Investments is not found, in terms, in the current provisions of the EPA Act or Regulation. Section 78A of the EPA Act does not require a development application to be made in a prescribed "form and manner" and no such formulation is used in cl 50 of the Regulation prescribing how a development application is to be made. While the imperative "must" is used in each of s 78A(8) and cl 50(1)(a), authority to which I have referred establishes that the absence of material so required does not detract from the proposition that the application lodged with the Council in the present case is a "development application" within the meaning of s 4 of the EPA Act.
58Critical to the submissions made on behalf of Ironlaw is cl 113(2) of the Regulation. The subclause stipulates that the deemed refusal period for the purpose of s 82(1) of the EPA Act be measured "from the date the development application is lodged with the consent authority" (my emphasis).
59The Council does not contest the proposition by Ironlaw that the application received by the Council on 2 July 2012 was a development application within the meaning of s 4 of the EPA Act and that it was an application "lodged" with it on that date.
60The requirement that a development application be "lodged" in order to engage the provisions of cl 113(2) is, so Ironlaw submits, conceptually different from a requirement that an application be "made" in a prescribed form and manner, at least in the context of provisions of the kind considered in Remath Investments. Under the current provisions of the EPA Act and the Regulation there are no "interconnecting" provisions that would either qualify or broaden the concept of "lodgement" under cl 113(2). I accept that submission.
61While there are a number of consequences that flow from the fact that documents nominated in the EPA Act or Regulation do not accompany the development application, their absence does not detract from the fact that the development application has been lodged. So much is implicit in the observations made by Stein JA in Remath Investments at [14].
62One consequence of the absence of a document required to accompany a development application at the time of its lodgement with the consent authority and relevant to the present case is that the consent authority is unable to proceed with the public notification and exhibition of the development application in accordance with s 79 of the EPA Act. Another consequence of present relevance is that the Council is unable to determine the development application in the absence of an environmental impact statement. Do these circumstances have the consequence that the "lodgement" required to trigger the deemed refusal period, has only occurred once the development application together with all those documents and information required by the EPA Act and Regulation, or at least, those documents required by s 78A(8) "to accompany" the development application (cf Cranky Rock Road at [69]) have been provided to the consent authority? Ironlaw's response to that question is in the negative. As Ironlaw submitted, its response to the question is supported by the provisions of cl 51 of the Regulation.
63As I have earlier recorded, cl 51(1) enables a consent authority to reject a development application within 14 days after receiving it if:
"(b) the application does not contain any information, or is not accompanied by any document, specified in Part 1 of Schedule 1 ...".
It will be remembered that the provision of an environmental impact statement in the case of an application for designated development is one of those documents identified in Pt 1 of Sch 1 to the Regulation when an application is made for consent to designated development.
64Subclause (3) of cl 51 provides that where an application is rejected under the clause, it is taken for the purpose of the Act "never to have been made".
65The provisions of cl 51 identify two matters of present relevance. First, the clause identifies a means by which the consent authority can exercise a power that will terminate the running of a deemed refusal period under cl 113 of the Regulation and thus deny any entitlement to appeal under s 97(1)(b) of the EPA Act. Second, the terms in which subclause (1) of cl 51 are framed clearly distinguish between the development application that is made and those documents that are required to accompany that development application. That distinction is the subject of observation by Basten JA in McGovern v Kur-ing-gai Council where his Honour said (at [194]):
"The requirements in the EP&A Regulation must be considered in their context, including cl 51(1) which empowers a consent authority to "reject" a development application within seven days after receiving it, if it does not comply with the requirements of cl 50(1)(a) or is "illegible or unclear as to the development consent sought." It might be thought curious if such a development application which was not so rejected was nevertheless invalid. Indeed, if it were not a development application at all, it is curious that cl 51 should refer to it as such ... . On the other hand, it may be that cl 51 merely allows the Council to cut short any uncertainty which might arise from the lodgement of an incomplete application. If that were the case, the approach of Stein JA in Remath Investments would have continued operation in those cases where the application was not rejected."
66Reliance is also placed by Ironlaw upon the provisions of cl 54 of the Regulation. By subclause (1), a consent authority may request an application for development consent to provide it "with such additional information about the proposed development as it considers necessary to its proper consideration of [that] application." The information that may be so requested is by subclause (3) is that which includes "but is not limited to, information relating to any relevant matter referred to in section 79C(1)(b)-(e) of the Act".
67That clause would empower the Council to seek information in order to determine whether, for example, the application before it was one that should properly be identified as designated development. The request for information that may be sought under cl 54 is also linked to the provisions of cl 109 which stops time running under cl 113 for a nominated time while the request for additional information remains unanswered.