respondent. Appeal dismissed; exhibits and Applicant's bundle of documents returned to the parties.
Key principles
A decision by a consent authority to reject a development application under cl 51(1)(b) of the EP&A Regulation is not a 'determination' for the purposes of s 8.7(1) of the EP&A...
Section 8.6(2) of the EP&A Act, which provides that a decision subject to appeal 'includes a decision made after a review under Division 8.2', does not itself create an...
The statutory language of Division 8.3, read in context, demonstrates a deliberate distinction between the terms 'decision' and 'determination' in the Act; appeals in Division...
Issues before the court
Whether an applicant has a statutory right of appeal to the Land and Environment Court against a consent authority's rejection of a development...
Whether s 8.6(2) confers an independent right of appeal from a decision made after a review under Division 8.2 (including a rejection).
Whether the decision in Parkes v Byron Shire Council requires the conclusion that a rejection is appellable under the current statutory scheme.
Plain English Summary
The Land and Environment Court held that a council's rejection of a development application because it lacked the land owner's consent (here, the council's consent for public roads) is not a 'determination' (approval or refusal) under the EP&A Act and so does not attract a statutory right of appeal under Division 8.3. Section 8.6(2) does not create a freestanding appeal right after review; it only extends existing appeal rights to decisions made after review. The applicant's appeal was dismissed.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,901 words · generated 26/07/2026
What happened
Johnson Property Group lodged a development application on 3 October 2019 for works to construct cycleways and carry out intersection improvements. The application covered Lot 8 Section 3 DP 3533 and several public road reserves. The application included written owner's consent for privately held parcels, but did not include the consent of the owner of the public roads (the respondent, Lake Macquarie City Council). On 9 October 2019 the Council rejected the application under cl 51(1)(b) of the Environmental Planning and Assessment Regulation 2000 because the application lacked the required owner's consent for the public road parcels.
Cited legislation
No linked legislation citations have been extracted yet.
The applicant sought an internal review under s 8.2(1)(c) EP&A Act. The Council was taken to have refused that review on 31 October 2019 and later formally refused on 7 November 2019. The applicant then commenced proceedings in the Land and Environment Court, and Pepper J ordered that a discrete legal question be determined separately: whether the applicant had a right of appeal against the Council's rejection. Duggan J determined that question and concluded the applicant had no such statutory right of appeal; the appeal was dismissed and the Court returned the material to the parties.
The litigation therefore focused not on the factual merits of the underlying works or whether the Council acted within power when rejecting, but on the statutory question whether Division 8.3 of the EP&A Act provides a right of appeal from a rejection under cl 51(1)(b).
Why the court decided this way
Duggan J's decision rests on close textual and contextual construction of Division 8.3 of the EP&A Act, with particular attention to ss 8.6 and 8.7.
The statutory gateway: s 8.6(1) – The judge began from s 8.6(1), which states the general proposition that "A decision of a consent authority under Part 4 in relation to an application for development consent or a development consent is (if this Division so provides) subject to appeal to the Court under this Division." Duggan J parsed the elements: there must be (a) a decision of a consent authority under Part 4, (b) that relates to an application for development consent (or a development consent), and (c) the Division must make provision for the appeal (ie, the Division must provide the appeal right).
Rejection is a Part 4 decision but not a 'determination' – The judge accepted that a rejection under cl 51 is a decision under Part 4. However, he drew a statutory distinction between a "decision" to reject (which, by regulation, may result in the application being treated as never made) and a "determination" which, across the Act, denotes the outcome under s 4.16 (an approval or refusal of the application after consideration). Section 8.7(1) uses the language 'dissatisfied with the determination of the application' which, in context, imports the s 4.16 meaning.
The role of s 8.6(2) – The applicant relied upon s 8.6(2), which says a decision subject to appeal "includes a decision made after a review under Division 8.2." Duggan J rejected the submission that this subsection creates an independent, freestanding appeal right from any decision following review. He read s 8.6(2) as definitional and expansive: where the Division otherwise provides a right of appeal, that right includes decisions made after a review. The textual indicators supporting this reading included the use of "includes" and the contrasting wording of ss 8.7 to 8.9 which expressly refer to appeals "against the determination." Section 8.6(3), which carves out particular exclusions, also supported a reading of s 8.6 as a conferral followed by definitional limits.
Consistency of meaning and context – Duggan J emphasised the general statutory construction rule that terms used repeatedly in an Act should be given a consistent meaning unless context requires otherwise. 'Determination' appears throughout the EP&A Act in the sense of the s 4.16 decision. The exclusion in s 8.2(1)(c) (the review provision which identifies rejection as 'reject and not determine') explicitly draws the contrast. Only insofar as the Division itself identifies other decisions as subject to appeal should 'decision' be read more widely. The Court found no textual basis in Division 8.3 to treat a cl 51 rejection as such an identified appealable decision.
Precedent: Parkes – The applicant relied on Parkes v Byron Shire Council. Duggan J distinguished Parkes. That earlier case reached the result that a rejection could be the subject of appeal, but Duggan J concluded Parkes’ reasoning was tied to an earlier regulatory and statutory context and in material respects did not analyse the EP&A statutory language in the way required by the current scheme. He therefore considered Parkes distinguishable and not followable on the present legislative regime.
Accordingly, because the Division 8.3 did not furnish an appeal right against a rejection under the Regulation, the statutory prerequisites for an appeal were absent and the appeal could not proceed.
Before and after state of the law
Before:
The decision in Parkes had been read by some practitioners and applicants as indicating that a rejection of a development application could give rise to an appeal to the LEC, particularly where the rejection was characterised as a function the Court could exercise under s 39(2) of the LEC Act (that is, the Court could exercise the same discretions as the consent authority).
After Johnson Property Group (Duggan J):
The decision narrows the scope for appeals: rejections under cl 51(1) are decisions that are not 'determinations' for purposes of s 8.7 and so, absent some specific provision in Division 8.3, they are not subject to the applicant-appeal pathway in s 8.7(1).
s 8.6(2) will be read as an amplifying definition, not as creating a standalone appeal remedy after review.
Parkes is formally distinguished and limited to its facts and prior statutory context; practitioners should not treat it as providing a general right to appeal rejections under the current EP&A legislative framework.
Practically, applicants who suffer a cl 51 rejection cannot rely on Division 8.3 appeal rights; their remedies will instead typically be confined to administrative review routes (where available) or judicial review (for jurisdictional error, Wednesbury unreasonableness, or other public law errors).
Key passages with plain-English translation
"A decision of a consent authority under Part 4 ... is (if this Division so provides) subject to appeal to the Court under this Division." (s 8.6(1) as cited)
Plain-English: The Act allows appeals to the Court only for those Part 4 decisions that Division 8.3 specifically says can be appealed. Not every Part 4 decision is automatically appealable.
"An applicant ... dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination." (s 8.7(1) as cited)
Plain-English: The statutory appeal for applicants is tied to the 'determination' of the application, meaning the final approval or refusal decision after consideration under s 4.16.
"Section 8.6(2) ... is not intended to confer an independent right of appeal by its terms."
Plain-English: Saying appeals 'include' post-review decisions simply expands appeals already available; it does not create a new, separate right to appeal every decision that comes after a review.
"The rejection ... is referred to as a 'decision' to reject, whereas the granting or refusal ... is referred to as a 'determination'."
Plain-English: The statute itself uses two different words on purpose: 'rejection' is a preliminary procedural decision about whether an application properly exists; 'determination' is the substantive yes/no decision about granting consent.
"For those reasons ... the answer ... Is 'No'."
Plain-English: The court's final ruling was that the applicant has no statutory right of appeal against the rejection and the appeal is dismissed.
Where the judgment refers to Parkes at particular numbered paragraphs of Parkes (for example [9], [10]-[13], [14], [15], [16] in the recitation), Duggan J used those authorities to trace the earlier reasoning and to explain why Parkes does not control here.
What fact patterns trigger this precedent
This decision controls situations where:
A consent authority (often the council) rejects a development application within the short statutory window under cl 51 because the application is missing prescribed material, for example, owner's consent for a parcel of land included in the application.
The rejection is on the basis that the application was not properly made (procedural deficiency) rather than being considered and refused or approved on merits under s 4.16.
The applicant seeks route to the LEC by characterising the rejection as a 'determination' or by relying on s 8.6(2) to secure an appeal right after an 8.2 review.
Under this precedent, such applicants will not find their remedy in Division 8.3 appeals; instead they must consider internal review, re-lodgement (with corrected documentation), or judicial review challenging jurisdictional or procedural error in the rejection decision.
How later courts have treated it
As at the date of this decision (30 April 2020) Duggan J expressly considered prior authority (Parkes), distinguished it, and declined to follow it. Practitioners should check subsequent reported decisions and any Court of Appeal/Supreme Court authority for further development. The decision outlines clear textual reasoning that is amenable to appellate review. If appellate courts accept Duggan J's statutory construction, the post-Johnson position will be authoritative; if they overturn, Parkes' approach may be reinstated or modified. For present purposes, Johnson Property Group stands as the binding LEC decision at first instance and will be persuasive when the textual arguments are repeated.
Still-open questions
Judicial review versus appeal: Duggan J noted but did not decide issues about whether the Council acted beyond power in rejecting the application when some owner's consents were provided and the Council itself was the landowner for the roads. He explicitly declined to determine those questions, recognising that they may be appropriate subjects for judicial review rather than an appeal under Division 8.3. The boundary between appealability and judicial review remains an area for litigants to consider carefully.
The effect of cl 51(3) of the Regulations: The Regulations provide that an application rejected and not changed on review is "taken ... never to have been made." Duggan J held that the Regulations are contextually relevant but would not displace the Act's appeal scheme. How that regulatory effect interacts with potential judicial review remedies and the timing of any such proceedings may require further clarification in later cases.
Narrower exceptions in Division 8.3: Division 8.3 identifies particular categories of decisions that are appealable. The present decision rests heavily on the observation that a rejection is not among them. Future disputes may arise where the line between what constitutes a 'determination' and what is a preliminary 'decision' blurs, for example, where a consent authority's procedural rejection is intertwined with substantive considerations.
Appellate treatment of Parkes and Johnson Property Group: Given Duggan J’s explicit distinction of Parkes, an appellate court could either affirm Duggan J's textual approach or revisit Parkes to reconcile the authorities. That will settle whether cl 51 rejections can ever be brought within the Division 8.3 appeal net under certain factual or statutory permutations.
Practical takeaways for practitioners: where an application is rejected under cl 51 for procedural deficiencies, do not assume an appeal under Division 8.3 is available; evaluate internal review avenues, consider re-lodgement where feasible, and preserve arguments and evidence for a potential judicial review if the rejection involved jurisdictional error or other public law fault.
Judgment (8 paragraphs)
[1]
Nature of proceedings
These proceedings relate to the rejection by the Council of a development application pursuant to cl 51(1)(b) of the Environmental Planning and Assessment Regulation 2000 (the Regulations) on the basis that the development application was not accompanied by the consent of the owner of the land to which the development application related.
The Applicant appealed against the rejection of the development application. The Council contends that there is no right of appeal.
By her decision of 4 February 2020 in Johnson Property Group Pty Limited v Lake Macquarie City Council [2020] NSWLEC 4 Pepper J made the following order:
(1) Pursuant to r 28.2 of the UCPR the following question is to be determined separately from any other question in the proceedings:
Does the Applicant have a right of appeal against the Respondent's rejection of its Development Application for the construction of cycleways and intersection improvement works located on Lot 8 Section 3 DP 3533 Freemans Drive, Stockton Street, Kahibah Street, Newcastle Street and Station Street, Cooranbong and Morisset.
These proceedings relate to the determination of that separate question.
[2]
Background Facts
For the purposes of the determination of this separate question the parties have tendered in the proceedings an Agreed Statement of Facts and an Agreed Bundle of Documents which, collectively, evidence the material facts that relate to the determination of the separate question. However, apart from establishing the essential underlying factual matters that are the foundation of the claim, the determination of this separate question turns upon a construction of the relevant legislative provisions, rather than the facts.
On 3 October 2019, the Applicant lodged a Development Application (the Development Application) with the Respondent (the Council) for:
1. The construction of a cycleway required to be provided by the North Cooranbong Planning Agreement between the Council and the Applicant dated 1 June 2015 (as amended by a Deed Amending the Planning Agreement (North Cooranbong) dated 19 December 2017) and Annexure F of the 2015 Agreement (the Planning Agreement); and
2. Provision of intersection improvement work identified in the Planning Agreement.
The site is described in the Development Application as Lot 8 Section 3 DP 3533, as well as road reserves being Freemans Drive, Stockton Street, Kahibah Street, Newcastle Street and Station Street, located in Cooranbong and Morisset. The works the subject of the Development Application related to land that included Lot 8 together with additional allotments of privately held land (the nature of such private landholdings were conceded as not being de minimus for the purposes of this application) (the Site).
Written owner's consent for the privately held lands within the Site was included in the Development Application. The only land to which the Development Application related for which the consent of the land owner was not provided was that part of the Site that comprised public roads. The Council is the roads authority for those public roads and is the owner of the public roads and its consent is required for the Development Application to be capable of approval.
By letter dated 9 October 2019, the Council rejected the documentation comprising the Development Application on the sole basis that owner's consent from all the relevant land owners (namely the Council for the public roads) had not been provided.
On 17 October 2019, the Applicant requested a review of the Council's rejection of the Development Application pursuant to s 8.2(1)(c) of the Environmental Planning and Assessment Act 1979 (EP&A Act) (the Review Application).
On 31 October 2019, the Council was taken to have refused the Review Application.
On 4 November 2019, the Applicant commenced appeal proceedings in this Court seeking an order, inter alia, that:
2. The Respondent is ordered to assess and determine the Development Application for the construction of cycleways and intersection improvement works, located on Lot 8 Section 3 DP 3533 Freemans Drive, Cooranbong and several road reserves, being Freemans Drive, Stockton Street, Kahibah Street, Newcastle Street and Station Street, Cooranbong and Morisset.
On 7 November 2019, the Council refused the Review Application.
[3]
Legislative provisions
The right to appeal to the Land and Environment Court from decisions relating to an application for consent or the grant of consent are identified in Part 8 Division 8.3 of the EP&A Act. Whilst the context and provisions of the whole of Division 8.3 was relied upon by the parties to provide a legislative context, the question turns upon whether, by application of s 8.6 and/or s 8.7(1), the decision to reject the Applicant's Development Application is subject to the right of appeal. Such provisions are:
8.6 Decisions subject to appeal to Court under this Division (cf previous s 23F)
(1) A decision of a consent authority under Part 4 in relation to an application for development consent or a development consent is (if this Division so provides) subject to appeal to the Court under this Division.
(2) A decision subject to appeal includes a decision made after a review under Division 8.2.
(3) There is no right of appeal under this Division against the following decisions -
(a) a decision of the Independent Planning Commission as consent authority under this Act in relation to the carrying out of any development that is made after a public hearing by the Commission into the carrying out of that development,
(b) the determination of, or a failure to determine, an application for a complying development certificate.
8.7 Appeal by applicant - applications for development consent (cf previous s 97)
(1) An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination.
(2) For the purposes of this section, the determination of an application by a consent authority includes -
(a) any decision subsequently made by the consent authority or other person about an aspect of the development that under the conditions of development consent was required to be carried out to the satisfaction of the consent authority or other person, or
(b) any decision subsequently made by the consent authority as to a matter of which the consent authority must be satisfied before a deferred commencement consent can operate.
(3) An appeal under this section relating to an application for development consent to carry out designated development in respect of which an objector may appeal under this Division cannot be heard until after the expiration of the period within which the objector may appeal to the Court.
[4]
Applicant's submissions
The Applicant submitted that the decision by the Council to reject the Development Application was subject to an appeal to this Court as:
1. The decision to reject was subject to a right of review pursuant to the provisions of s 8.2(1)(c);
2. The decision not to change the decision to reject the Development Application upon review was subject to a right of appeal pursuant to:
1. Section 8.6(2) that, in express terms, includes as a decision subject to appeal a decision made after review under Division 8.2; and/or
2. Section 8.7(1) that relates to an Applicant who is dissatisfied with the determination of an application by the consent authority - such a determination must include the decision to reject the Development Application.
With respect to the reliance upon s 8.7(1) the Applicant cited the decision in Parkes v Byron Shire Council (2003) 129 LGERA 156 (Parkes). In that decision it was determined that, upon a proper construction of the provisions of the EP&A Act and the Regulations as they were then in force, the decision to reject a development application was a decision from which a right of appeal to the Court was available.
The Applicant acknowledged that the statutory provisions under consideration in Parkes had subsequently changed. It was submitted, however, that such statutory amendments only served to reinforce the position arrived at in Parkes, as they made the appeal right clearer. As such, it was contended that I should not depart from the decision in Parkes and should, on the present statutory regime, similarly find that the appeal right is available through the application of s 8.7(1) of the EP&A Act.
The Applicant also submitted that there was no warrant in the statutory language to draw a distinction in Division 8.3 from the use of the terms "decision" and "determination" such that the appeal right in s 8.7(1) was limited only to the determination by approval or refusal of a development application rather than its rejection, even where the route to appeal was through an 8.2 Review.
The Applicant also submitted that, notwithstanding any appeal, the Council had no power to reject the Development Application as the Applicant had provided owner's consent for all of the privately held land. As a consequence, the Development Application provided owner's consent for an aspect of the land and an aspect of the development to which the application related. It was beyond the Council's power to reject the whole of the Development Application where the asserted deficiency related only to part of or an aspect of the Development Application. Where the deficiency related to only part of the land, and the land to which the deficiency related was owned by the consent authority, such was capable of cure at any time prior to the grant of development consent. Further, where there is an appeal to the Court from an actual or deemed refusal of the Development Application, the Court can exercise the function of Council to grant owner's consent. Accordingly, it was submitted that the Court would find the rejection of the Development Application beyond power.
[5]
Council's submissions
The Council's primary submission was that on a proper construction of ss 8.6(1) and 8.7(1) an appeal was limited to a "determination" rather than a "decision". This distinction is important as a determination is made pursuant to s 4.16 of the EP&A Act to either refuse or approve a development application, whereas the rejection of a development application is a "decision" to reject the development application and operates such that the development application has never been made as per cl 51(3) of the Regulations.
This legislative intent to limit appeals to determinations of development applications is derived from the difference in language used in the various Divisions of the EP&A Act, in particular:
1. Division 4.3, insofar as it relates to development that requires development consent, uses the term "determination" with respect to the final act of the consent authority after consideration of the relevant factors relating to the development application;
2. Division 8.2, which relates to reviews, makes a clear distinction between determinations that are the subject of review and decisions that are the subject of review. A rejection of a development application is referred to as a "decision" to reject, whereas the granting or refusal of a development application is referred to as a "determination"; and
3. Division 8.3 to the extent it refers in the heading of the Division to "decisions", (s 35(1) Interpretation Act 1987) or in s 8.7(1) where decisions are also referred to, that reference is limited only to decisions that are identified in the Division itself and not all decisions. In this case, the relevant provision in the Division is s 8.7(1) which limits its operation to determinations and nominated limited decisions. The rejection of a development application is not included (for the purposes of s 8.7) as a decision that is to be included as a determination as that word is used in that section. Therefore, the statutory intent is to limit the appeal to determinations and not to decisions (unless specifically nominated).
The Council submitted that the reference in s 8.6(2) to appeals against a decision after review was not conferring a right of appeal for all decisions after a review but rather was identifying that where a right is later conferred in the Division that right also relates to an appeal from a decision on review. That is, the right of appeal from a decision on review is limited to appeals that are otherwise separately provided for in the Division following from s 8.6. Absent separate identification of a right of appeal there is no independent right of appeal from a decision after review.
[6]
Determination of separate question
For the reasons that follow, the separate question should be answered in the negative, that is, that the Applicant does not have a right of appeal to this Court against the Council's rejection of its Development Application.
Section 8.1 provides that in Part 8 of the EP&A Act appeal means:
Appeal means an appeal to the Court under Divisions 8.3, 8.4, 8.5 and 8.6.
The only Division that the parties contended could relate to the rejection of the Development Application is Part 8 Division 8.3. Accordingly, the determination of this separate question turns on the construction of the relevant provisions in Division 8.3 of the EP&A Act, and, more particularly, ss 8.6 and 8.7 of that Division.
Section 8.6(1) is a provision that confers all of the appeal rights in that Division. It expresses this conferral of rights as:
A decision of a consent authority under Part 4 in relation to an application for development consent or a development consent is (if this Division so provides) subject to appeal to the Court under this Division.
In order that the Division operates to confer a right of appeal s 8.6(1) requires that the following factors are present:
1. There must be a decision of a consent authority under Part 4;
2. That decision must relate to an application for development consent, or a development consent; and
3. The Division must make provision for the appeal.
The decision to reject a development application does meet the first two of these requirements. First, it is a decision of a consent authority (in this case the Council) under Part 4 in that s 4.12 provides that:
4.12 Application
(cf previous s 78A)
(1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development.
The Regulations to which that section refers includes cl 51 that, relevantly, provides:
51 Rejection of development applications
(cf clause 47(1)-(3) of EP&A Regulation 1994)
(1) A consent authority may 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, or
…
In this case the information that the Development Application did not contain was said to be the requirement in Part 1 of Schedule 1, cl 1(i) that the application be accompanied by:
(i) evidence that the owner of the land on which the development is to be carried out consents to the application, but only if the application is made by a person other than the owner and the owner's consent is required by this Regulation,
[7]
Conclusions and orders
For those reasons, I determine that the answer to the separate question formulated in the following terms:
Does the Applicant have a right of appeal against the Respondent's rejection of its Development Application for the construction of cycleways and intersection improvement works located on Lot 8 Section 3 DP 3533 Freemans Drive, Stockton Street, Kahibah Street, Newcastle Street and Station Street, Cooranbong and Morisset?
Is "No".
Accordingly, as I have found that the Applicant does not have a right of appeal to this Court against the Council's rejection of the Development Application and I have answered the separate question in the negative, the appeal must be dismissed.
The Court orders that:
1. The appeal is dismissed; and
2. The exhibits together with the Applicant's bundle of documents (which was filed but not tendered) are returned.
[8]
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: 30 April 2020
Appeal dismissed; exhibits and Applicant's bundle of documents returned to the parties.
The Council submitted that the decision in Parkes did, in substance, turn upon a consideration of the Court's power under s 39(2) of the Land and Environment Court Act 1979 (the LEC Act) and not after any substantial consideration of the statutory scheme. The Council contended that the decision in Parkes was wrong and should not be followed.
In its written submissions the Council placed significant weight upon cl 51(3) of the Regulations that provides:
(3) An application is taken for the purposes of the Act never to have been made if the application is rejected under this clause and the determination to reject the application is not changed following any review.
However, in its oral submissions the Council rightly conceded that the provisions of the Regulations had little consequence in the determination of the separate question as if, on a proper construction of Division 8.3 of the EP&A Act, there is a right of appeal from a rejection of a development application, the Regulations would not operate to remove or limit that appeal right. It was accepted that the Regulations are only relevant as part of the context of the legislative scheme.
Clause 49(1) of the Regulations provides:
49 Persons who can make development applications
(cf clause 46 of EP&A Regulation 1994)
(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.
The decision to reject the Development Application is thereby a decision made under Part 4. To this end, I also observe that such a construction is consistent with the provisions of s 8.2(1) of the EP&A Act that includes a review from a rejection as a decision made under Part 4.
The decision also related to an application for development consent. The statutory language in s 8.6(1) distinguishes between an application for development consent and a grant of development consent. The section does not use the defined term in s 1.4 "development application"' which is defined as: "an application for consent under Part 4 to carry out development but does not include an application for a complying development certificate". Therefore, the section must be taken to be referencing something other than a "development application". The phrase used is "in relation to an application for development consent" extends the reference to matters that have a relationship to, but do not necessarily comprise, a development application. Further, the language of s 8.6(1) does not refer to the refusal of an application as a counterpoint to the grant of consent. This language also indicates that the relationship required by s 8.6(1) to an application for development consent is intended to relate to decisions broader than ones that relate merely to the grant or refusal (otherwise referred to as "determination") of a development application. In this context, the rejection of a development application would be a decision relating to an application for development consent and would therefore meet this requirement.
The final requirement is that the Division must provide for the identified decision to be the subject of a right of appeal. The determination of this requirement turns on whether s 8.6(2) or s 8.7(1) confers such a right in the circumstances of a rejection of a development application. For the reasons that follow, I find that the decision to reject a development application is not a decision that is subject to appeal as it is not a decision for which the Division provides such a right of appeal.
Section 8.6(2) operates to ensure, in terms, that a decision made after a review is capable of being the subject of appeal. The question in this case is whether it is sufficient, on its own terms, to confer a right of appeal to any matter that is capable of being subject of review, which would include the decision to reject a development application: s 8.2(1)(c). Having regard to the language used in s 8.6(2) and the context of both Division 8.3 and the EP&A Act as a whole, the section is not intended to confer a right of appeal independent of the appeals specifically provided for in the Division as:
1. The words of the section operate to define a right of appeal as evidenced by the term "includes". That is, the section operates to include in any appeal right conferred the right to appeal from a decision made on review where the review relates to a matter that is the subject of an appeal right. Section 8.6(2) is intended to define, by expansion, the decisions referred to in s 8.6(1). This definitional relationship indicates that it is not intended to confer an independent right of appeal by its terms;
2. This construction is consistent with the provisions of the Division in which it is found. Each of ss 8.7, 8.8 and 8.9 confer a right of appeal with the phrase "may appeal to the Court against the determination". The fact that s 8.6(2) does not use such an express phrase is indicative of a construction consistent with it being a provision that operates to define the extent of the right conferred by s 8.6(1) rather than confer an independent right; and
3. Further, the provisions of s 8.6(3) similarly define (by constraint) the right conferred by s 8.6(1) by exclusion of certain decisions that may, on the face of the language used in s 8.6(1), have been included in the right conferred. Consistent with that provision the operation of s 8.6, when read as a whole, is the conferring of the general power in s 8.6(1) and then further defining it in terms in the provisions of s 8.6(2) and s 8.6(3).
For those reasons, I find that s 8.6(2) in conjunction with s 8.6(1) does not confer an independent right of appeal from all decisions made after a review, but provides to include such decisions where a right of appeal is otherwise conferred by Division 8.3 of the EP&A Act.
The parties accepted that the only other provision in Division 8.3 to which an appeal against the rejection of a development application could relate was the appeal right conferred by s 8.7(1).
For the reasons that follow, I find that on a proper construction of s 8.7(1) it is limited only to those appeals that relate to the determination of a development application as referred to in s 4.16 of the EP&A Act, that is, the determination to approve or refuse the application. For the reasons already identified, such an appeal would include a right of appeal from a decision to review such a determination in accordance with the provisions of s 8.2(1)(a) and (b) but not s 8.2(1)(c).
Section 8.7(1) expresses the circumstances that give rise to the appeal as being related to where a person is "…dissatisfied with the determination of the application...". The concept of the determination of a development application is one that is used throughout the EP&A Act as being a decision made pursuant to s 4.16 and notified in accordance with the requirements of s 4.18. Whilst "determination" is not a defined term, it is a general rule of statutory construction that, unless the context or purpose of the Act indicates to the contrary, a word should be given a consistent meaning where used consistently in the same Act (and particularly where the word is used multiple times within a single section).
The subsequent subsections of s 8.7 reinforce this construction in so far as they expand the definition to incorporate post-determination decisions relating to a consent that has been granted.
Further, the rejection of a development application is not referred to in any part of the EP&A Act, either expressly or by implication, as being a determination of an application for development consent. The reference to the rejection of a development application in s 8.2(1)(c), in terms, notes that the decision is to reject "and not determine an application for development consent." This context supports the construction of s 8.7(1) as being limited to the decision to approve or refuse an application for consent and not to reject the making of that application.
The only reference to the rejection of a development application as being a "determination" is in cl 51(3) of the Regulations. This reference, due to its context, is clearly speaking of a decision to reject and not a determination in the same sense that it has been used in the Act. Therefore, I do not consider this otherwise inconsistent isolated use in the Regulations of the word "determination" would sufficiently indicate a statutory intent to alter the construction I have identified derived from the balance of the legislative scheme.
To the extent the Applicant relies upon the decision of Lloyd J in Parkes, I consider that the statutory context in which this current question arises is sufficiently different to distinguish the decision in Parkes. The convention of judicial comity would suggest that I would follow this decision unless I considered it to be wrong (Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812 at 820). For the reasons that I have outlined and those that I set out below, I consider that the decision in Parkes is not correct and should not be followed.
The decision in Parkes should be distinguished. In that case the Council had rejected the Development Application on two bases: first, the lack of owner's consent; and, second, that the Development Application was unclear - a finding which was accepted by his Honour, and the appeal refused on that basis. The Court found that the absence of owner's consent was not a basis upon which the Council was entitled to reject a development application. This finding turned upon a consideration of the provisions of what then was the power to reject a development application as provided for in cl 51(1) of the Regulations that was in the following terms:
(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 being sought.
It was said in Parkes at [9] that the lack of owner's consent could not render a development application "illegible or unclear as to the development being sought". Such a finding, on the provisions of the Regulations under consideration in that case, is unremarkable. However, such a finding does not stand for the proposition that a development application, in all cases, cannot be rejected for lack of owner's consent.
Of particular moment to the separate question in these proceedings is that the Regulations now provide that a development application can be rejected on the basis that it is not accompanied by material specified in the Schedule which (as I outline above) includes the requirement for owner's consent. Therefore, the finding that lack of owner's consent is not open on the terms of the Regulations to permit a rejection of a development application is no longer applicable due to the amendment of the Regulations. The finding as to owner's consent in Parkes is clearly distinguishable on the current legislative regime.
After making that finding, the Court at [10]-[13] then recited a number of authorities dealing with whether a matter was capable of being considered the "subject matter of the appeal" as that phrase was used in s 39(2) of the LEC Act (now s 8.14 of the EP&A Act). The considered authorities included: North Sydney Council v PD Mayoh Pty Ltd (1988) 14 NSWLR 740; Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724.
His Honour then proceeded "in light of these authorities [to] turn to the present case". At [14] it was then observed that the Council's power to reject the Development Application under cl 51(1) was the exercise of a function or discretion relating to the subject matter of the appeal and, therefore, the Court had the power to exercise that function or discretion pursuant to s 39(2) which places the Court in the same position of the Council.
As was observed by the Court at [7] the Council had submitted that:
As noted above, the applicant has appealed under s 97(1) of the EP&A Act against the Council's rejection of the third development application. The argument of Mr I J Hemmings, appearing for the Council, in support of the present notice of motion, is attractively simple: the court can only consider an appeal with respect to a development application; following the rejection of the development application the effect of cl 51(3) of the EP&A Regulation, however is that the development application is taken never to have been made, then there can be no right of appeal with respect to a non-existent development application.
At [15] his Honour rejected this submission of the Council on the basis that the operation of the provisions of cl 51(3) of the Regulations at which time provided:
(3) An application that is rejected under this clause is taken for the purposes of the Act never to have been made.
is a consequence of the exercise of the power and discretion under cl 51, which was now being exercised afresh by the Court in the appeal and, only if the Court determined to reject the application in the exercise of its discretion would the consequence under cl 51(3) be enlivened.
The two reasons his Honour gave at [14] and [15], however, rely upon there being an appeal to which the provisions of the then s 39(2) could operate. The fundamental requirement is that there is in existence of an appeal. Once there is such an appeal the matters for determination can include the matters identified in s 39(2). Absent an appeal commenced pursuant to the appeal powers under the EP&A Act there is no independent right of appeal created by s 39(2) of the LEC Act. Whilst his Honour's reasons do recite that the appeal was made pursuant to s 97(1) of the EP&A Act, and notes the submission of Mr T S Hale SC at [8(c)] that a rejection of a development application amounts to a determination by a consent authority with respect to the Development Application, there is nothing that can be gleaned from the reasons that identifies the source of the right of appeal.
At the time of the decision in Parkes the relevant appeal right was contained in s 97(1) which also expressly referred to: "an applicant who is dissatisfied with the determination of a consent authority with respect to the applicant's development application…". Apart from reciting the submission that the rejection comprised a "determination with respect to the applicant's development application" the decision is without any analysis as to the basis, having regard to the legislative language and context, that such a proposition was, in fact, accepted. The decision is also unclear as to whether that particular submission was accepted. The Court notes at [16] that: "It follows that I accept the submissions of Mr Hale SC." That acceptance, however, immediately follows the passages (referred to above) that consider the application of s 39(2) of the LEC Act and not the appeal rights conferred by the EP&A Act.
Absent some identification of the basis on which his Honour considered that there was a right of appeal, his Honour's ultimate finding as to the operation of s 39(2) is in error. Fundamental to the determination of these proceedings and those in Parkes was that there must be an appeal right. For the reasons identified above (which reasons would have been equally applicable in Parkes), there is no right of appeal from the rejection of a development application and therefore no appeal to which the Court's powers under s 39(2) are to be exercised.
For those reasons, I do not follow the decision in Parkes as it is both distinguishable due to amendments to the relevant legislative provision and, in my opinion, wrong.
The Applicant also made submissions relating to the Council's power to reject the Development Application in the factual circumstances of this case both because an element of owner's consent had been provided and also because of the interrelated roles of Council as both the consent authority and the landowner. It was ultimately accepted by the Applicant that these submissions do not relate to the resolution of the separate question as formulated. As issues such as these may fall for consideration in any available judicial review proceedings relating to the exercise of the power to reject the Development Application (and as it is not necessary for me to make any determination on these submissions in order to answer the question posed), I decline to make any determination on these submissions in the context of this separate question.