NCV Enterprises Pty Ltd v Tweed Shire Council - [2024] NSWLEC 14 - NSWLEC 2023 case summary — Zoe

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NCV Enterprises Pty Ltd v Tweed Shire Council

[2024] NSWLEC 14

Land and Environment Court (NSW)|2023-05-16|Before: Pepper J, Dr J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2023-05-16

Before

Pepper J, Dr J

Catchwords

(2010) 172 LGERA 380 Bay Simmer Investments Pty Ltd v New South Wales [2017] NSWCA 135
(2017) 222 LGERA 286 Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 331
(2019) 237 LGERA 74 Michael Brown Planning Strategies Pty Ltd v Wingecarribee Shire Council [2020] NSWCA 137
(2020) 247 LGERA 221 Olsson v Gouldburn Mulwaree Council [2010] NSWLEC 169

Source

Original judgment source is linked above.

Catchwords

(2010) 172 LGERA 380 Bay Simmer Investments Pty Ltd v New South Wales [2017] NSWCA 135(2017) 222 LGERA 286 Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 331(2019) 237 LGERA 74 Michael Brown Planning Strategies Pty Ltd v Wingecarribee Shire Council [2020] NSWCA 137(2020) 247 LGERA 221 Olsson v Gouldburn Mulwaree Council [2010] NSWLEC 169(2010) 176 LGERA 71 Principal Healthcare Finance Pty Ltd v Ryde City Council [2016] NSWLEC 153(2016) 222 LGERA 212 RIG Consulting Pty Ltd v Queanbeyan-Palerang Regional Council [2021] NSWCA 130(2021) 249 LGERA 377 Strathfield Municipal Council v Poynting [2001] NSWCA 270

Judgment (97 paragraphs)

[1]

The applicant, NCV Enterprises Pty Ltd ("NCV") lodged an application for staged concept development on 27 August 2020, pursuant to s 4.22(1) of the Environmental Planning and Assessment Act 1979 ("the EPAA") ("the concept DA").

[17]

Individual titling and dwelling / plot or land ownership is not considered for the site, nor is it permissible through the relevant environmental and planning framework.

To facilitate the intended layout and yield for the 10 x RLSCs however, existing lots and their boundaries will be required to be altered. While this realignment of boundaries will be subject to a future DA, the Concept Plan does indicate the preferred subdivision layout for the site, please refer to Appendix A2.

This intended subdivision layout does not fragment the site for the purpose of additional dwellings. Rather, the subdivision amalgamates the current 21 x lots into 10 x lots and facilitates 10 x RLSCs and 1 Village lot.

Each proposed lot contains Developable Area land of a suitable size to cater for the RLSC dwelling plots available under State Environmental Planning Policy (Primary Production and Rural Development) 2019.

Lot configurations have been based on the attributes of the land and some boundaries align with Council preferred dam boundary. This ensures that, if and when this land is resumed, this area can be separated with minimal need for boundary adjustment. The balance area of these lots (post dam resumption) achieves the LEP minimum lot sizes for the zone (being 40ha).

20m wide right of ways easements have been shown and labelled accordingly, ensuring road access is maintained for all lots. Easements benefit less than 5x lots as specified in Council's Subdivision Manual. The maximum number of lots benefited would be by Easement A in proposed Lot 1 which benefits 4 x lots (lots 2, 5, 6 and 11) and Easement C in proposed Lot 3 which benefits 4x lots (lots 7, 8, 9 and 10). The proposal therefore meets Council's technical requirements under Section A5, though given the RLSCs shared nature access will be permitted across the site.

Lot titles will incorporate 88B instruments to ensure lots are collectively managed and development remains linked to the concept. This instrument will be delineated through the subsequent subdivision stage.

[52]

The first question concerns the effect of cl 4(1)(a) of Sch 5 of the Primary Production SEPP which provides that the consent authority "may grant development consent to development on the land" if "satisfied" that "the land is a single lot with an area of not less than 10 hectares". In other words, in circumstances where there can be no state of "satisfaction" because the consent authority has not yet considered any subsequent development applications for the relevant stages of the concept proposal the subject of the concept DA, does this mean that the development is prohibited and consent cannot be granted to the concept DA?
In summary, the NCV argued that cl 4(1)(a) of Sch 5 of the Primary Production SEPP does not apply to the concept DA either because it is not development for the purpose of the EPAA, or the concept DA is a special kind of development application to which consent may be given, even if the proposed development is a form of prohibited development.
NCV submitted that because consent to the concept DA does not authorise the carrying out of the development the subject of the concept development, it is not a "development consent" within the meaning of cl 4(1)(a) of Sch 5 of the Primary Production SEPP, and moreover, even if it was, cl 4(1)(a) does not act to prohibit the granting of consent to the development the subject of the concept DA because the prohibition against this type of development relates only to the "carrying out of development" and none was proposed to be carried out by the making of the consent DA pursuant to s 4.22(4) of the EPAA.
Further, considerations of permissibility are irrelevant at the concept DA stage because assessment of the development the subject of the development application occurs in the future and requires other acts to be carried out first, such as, in this case, subdivision. Permissibility is therefore not a matter relevant to the determination of the concept DA.
By contrast, the Council contended that NCV's submission ignores the express words in the chapeau to cl 4(1)(a) of Sch 5 of the Primary Production SEPP. A consent to a concept development application is a development consent for the purposes of cl 4(1) of the Primary Production SEPP and the EPAA. The SEPP is an environment planning instrument made under the EPAA and the terms used in that instrument have the same meaning as cognate terms used in the Act, except insofar as a contrary intention appears. Therefore, according to the Council, when cl 4(1) refers to "development consent" this extends, by operation of s 4.24(1) of the EPAA, to a consent to the concept DA. A consent to a concept development application is a consent to "development" (as defined in the EPAA), which, for present purposes is the subject-matter of the concept DA.
To the extent that NCV submitted that because the concept DA is, by definition, not for the carrying out of development, and therefore, is not prohibited development, the Council submitted that this misconstrued the definition of "prohibited development" in the EPAA, which means development the carrying out of which is prohibited or development that cannot be carried out with or without development consent. If the concept DA is for development that cannot be carried out with or without consent, as in the present case, then it is prohibited development to which consent cannot be granted.

[56]

In that case, the Court of Appeal held that s 83B, since repealed, when read in conjunction with other provisions of the EPAA as it stood at the time, required the Minister to consider the likely environmental impacts of the staged development, including construction related impacts, when determining whether or not to grant consent to the staged development application. While subsequent changes to the EPAA have had the effect of rendering otiose some of the reasoning in that decision (especially the promulgation of s 4.22(5) of the EPAA), his Honour's remarks remain apposite.
A "concept development application" is defined in s 4.22(1) as a "development application" that sets out concept proposals for the "development" of a site, and for which detailed proposals for the site or separate parts of the site are to be the subject of subsequent development applications (Local Democracy Matters Inc v Infrastructure NSW [2019] NSWCA 65; (2019) 237 LGERA 74 at [73]). The "development" of the site referred to in s 4.22(1) of the EPAA has the meaning ascribed to that term in s 1.5(1) of that Act.
A concept development application seeks consent for development in the same manner that a development application does (s 4.22(5) of the EPAA). As a consequence, the consent authority must consider the likely impacts of the concept development under s 4.15 of the EPAA and take into consideration the matters contained in that provision insofar as they are relevant, including the provisions of any environmental planning instrument (s 4.15(1)(a)(i) and Local Democracy at [22]). Clause 4(1)(a) of Sch 5 of the Primary Production SEPP is a provision of a relevant environmental planning instrument and must be considered by a consent authority in determining whether or not to grant consent to the concept DA.
A consent authority determines a concept development application under the same power as it determines all development applications, that is, s 4.16 of the EPAA. It does so either by granting consent to the application subject to conditions or unconditionally, or by refusing consent. Conditions are imposed pursuant to s 4.17 of the EPAA. A concept development consent must also conform to the requirements of s 4.22(4) of the EPAA.
A consent granted on the determination of a concept development application for a site sets the parameters for the determination of any further development application in relation to that site. In particular, s 4.24(2) of the EPAA states that while a concept development consent in respect of a site remains in force, any determination of a further development application in respect of the site cannot be inconsistent with the consent for the concept proposal for the development of the site.
That detailed plans for the development of a site the subject of concept proposals will be the subject of subsequent development applications was recognised by the Court in Uniting Church, when it was observed that cl 7.10 of the Parramatta Local Environmental Plan 2012 only required the consent authority to have regard to matters that were relevant to the concept development application (at [55]).
Uniting Church was applied in Local Democracy. In the latter case, the Court of Appeal accepted that the relevant Minister only had to form an opinion as to design excellence as required by cl 6.21 of the Sydney Local Environmental Plan 2012 ("SLEP") by reference to matters that are relevant to the concept application and not to a later stage of the development for which separate consent was required (at [73]). It therefore followed that not all matters identified in cl 6.21(4) of the SLEP were relevant to a concept development application, for example, matters referring to a high standard of architectural design, materials and detailing (at [74]).
Significantly for present purposes, the Court rejected the argument that cl 7 of State Environment Planning Policy No 55 - Remediation of Land ("SEPP 55") required the Minister to consider the question of contamination of the development site by reference to the work the subject of the concept development application (at [103]).
Clause 7(1) of SEPP 55 was in the following terms (at [88]):

[65]

Section 4.22(4) also provides that the terms of a consent granted on the determination of a concept development application are to reflect the operation of the subsection.

100 Clause 7(1) of SEPP 55 prohibits the carrying out of any development on land unless the requirements of subcl (a), (b) and (c) are satisfied. The expression "carrying out of development" is defined in s 1.5(3) of the EPA Act **103 to mean "the doing of the acts ... referred to in [s 1.5(1) of the EPA Act]". Section 1.5(1) defines "development" to mean any one of six acts, matters or things, one of which is "the demolition of a building or work".

101 The Concept DA sought to carry out only one form of development, namely the demolition of buildings to be carried out during Stage 1. Consent to the concept proposal did not authorise any further development to be carried out on the site beyond the works involved in Stage 1. Further development, in particular the construction of the new stadium, required a separate development application and the grant of consent by the Minister to that application. Before granting any such consent the Minister would have to take into account the matters and form the opinion required by the legislation and subordinate instruments.

102 The prohibition in the chapeau to cl 7(1) of SEPP 55 is directed to the grant of consent "to the carrying out of development on the land". In the present case the only consent sought for the carrying out of development was to the demolition of buildings to be carried out during Stage 1 of the project. In these circumstances the reference to "the carrying out of any development on the land" in the chapeau is therefore to the carrying out of the demolition work proposed in Stage 1 of the project.

103 Clause 7(1)(b) and (c) each use the expression "the purpose for which the development is proposed to be carried out". The development proposed to be carried out is the carrying out of demolition work during Stage 1 of the project. The purpose for which the demolition work is to be carried out is to ready the site for the next stage of the project - that is, the construction of the new stadium. As contemplated by s 4.22(1) of the EPA Act the next stage of the project will require detailed proposals for the site which will be the subject of a subsequent development application or applications. The Minister will therefore be required to assess the development application in relation to Stage 2 of the project by reference to the requirements specified in cl 7(1) of SEPP 55. It would be very odd if cl 7(1) required the same issues of contamination to be addressed at different times as the project moved through consecutive but separate stages.

104 This conclusion is consistent with the scheme established for concept development applications by s 4.22 of the EPA Act. It is also consistent with the object of SEPP 55 stated in cl 2. There is no risk of harm to human health or the environment if each stage of a concept proposal is subject to the rigorous requirements of SEPP 55.

[66]

Construing cl 7 of SEPP 55 in its statutory context, the Court held that the prohibition in the chapeau of cl 7(1) of the SEPP 55 was directed to the grant of consent "to the carrying out of development on the land" as that phrase is defined in s 1.5(3) of the EPAA. The only form of development for which consent was sought in the concept development application was the demolition of buildings that was to be carried out during Stage 1. Consent to the concept proposal did not authorise any further development to be carried out on the site beyond the works contemplated in Stage 1. Any further development, such as the construction of a new stadium, required a separate development application and a separate consent. Before granting any such consent the Minister would have to take into account the matters, and form the opinions, required by the legislation and any subordinate instruments.
Because the prohibition in cl 7(1) of SEPP 55 was directed to the grant of consent "to the carrying out of development on the land", and the only consent initially sought was for the demolition of buildings during Stage 1 of the project, the reference "to the carrying out of development on the land" was to the work proposed in Stage 1 and no more.
Similar reasoning was applied to those clauses referring to "the purpose for which the development is proposed to be carried out". It was the next stage of the project, namely, the actual construction of the stadium, that demanded detailed proposals for the site which would be the subject of subsequent development applications. Clause 7(1) of the SEPP had to be addressed not at Stage 1, but at Stage 2 of the project, to avoid the same issue of contamination being considered at different and multiple times as the project moved through various stages of development. This is what s 4.22(1) of the EPAA contemplated and such a conclusion was consistent with the objects of SEPP 55.
It is within this statutory context that cl 4(1)(a) of Sch 5 of the Primary Production SEPP must be construed.
As the statutory scheme makes plain, consent by a consent authority (in this instance, the Court) to a concept development application results in a development consent for the purposes of Pt 4 of the EPAA. There is nothing about the definition of "development" in s 1.5 that divorces it from a concept development or takes a concept development application, and any consent granted pursuant to it, outside the regulatory regime with respect to development applications and development consents contained in Pt 4 of the EPAA.
The Primary Production SEPP is an instrument made under the EPAA, and the terms used in that SEPP have the same meaning as the Act unless the contrary intention applies (ss 5(2) and 11 of the Interpretation Act 1987). Having regard to the text and context of cl 4(1)(a), there is no warrant for construing the words "development consent" in that clause as excluding, as NCV suggests, consent to a concept development application.
In the present case, NCV made a development application that sets out a concept proposal for multiple Rural Land Sharing Communities. More specifically, the concept DA seeks consent for 10 x Rural Land Sharing Communities and Stage 1 roadworks and earthworks on the identified land, and refers to the SEE for further details. The SEE makes it plain that Stage 1 is concerned with road access and earthworks only. Approval to subdivide the site and to establish the plots comprising the Rural Land Sharing Communities (Stages 2-12) is to occur in subsequent development applications.
The SEE goes on to explicitly state that to facilitate the intended layout and yield for 10 x Rural Land Sharing Communities, existing lots and their boundaries will be required to be altered and will be the subject of a future development application. The Concept Plan indicates the preferred subdivision layout for the site, which is to amalgamate the current 21 lots into 10 x Rural Land Sharing Communities lots and 1 Village lot.
Table 12 of the SEE sets out the area and the number of dwellings on each of the proposed lots following the subdivision of the site in Stage 2 and the maximum number of dwellings permitted per lot in conformity with the density requirement of cl 7 of Sch 5 of the Primary Production SEPP. The SEE then proceeds to describe the proposed future staging of the development in detailed terms. It states that Stages 1 and 2 are only concerned with the creation of master allotments.
By reason of cl 1 of Sch 5 of the Primary Production SEPP, in order to understand the effect of cl 4(1)(a) of that planning instrument on the concept DA, consideration must also be given to the LEP. The LEP proscribes which development may be carried out without development consent, with development consent, or which is prohibited (cl 2.3). This tripartite approach conforms with Div 4.1 of Pt 4 of the EPAA (see ss 4.1, 4.2 and 4.3 of that Act).
Subdivision is permissible in the RU2, RU5 and W1 zones pursuant to cl 2.6 of the LEP, and the construction of roads is permissible. Moreover, environmental protection works (the works contemplated by Stage 1), which includes "works associated with the rehabilitation of land", are permissible without consent under that instrument. Rural land sharing communities is, however, not a recognised use under the LEP and the zoning tables are silent in respect of it.
Clause 2.3(4) of the LEP provides that cl 2.3 is subject to the other provisions of the LEP, including Sch 5 of the Primary Production SEPP (by reason of the operation of cl 1 of that Schedule which acts to incorporate it into the LEP), and therefore, cl 4(1)(a) of Sch 5 of the Primary Production SEPP. Accordingly, rural land sharing communities are subject to the constraints imposed by cl 4(1)(a) on the granting of consent. Put another way, consent for a rural land sharing community development may be granted provided that the requirements of cl 4(1)(a) of Sch 5 of the Primary Production SEPP are met.
As the discussion in the authorities referred to above establishes, the terms "development consent" and "development" in the chapeau of cl 4(1) carry the same meaning as the definitions given to them in the EPAA. This is harmonious with Divs 4.1 and 4.4 and, in particular, s 4.22 of that Act.
As observed earlier, it is not in dispute that because the concept DA applies to approximately 1,600 ha of land made up of 21 lots, the requirements of cl 4(1)(a) of Sch 5 of the Primary Production SEPP cannot presently be satisfied. It is, however, the intention of the proponent, after subdivision in later stages of the project and because each of the Rural Land Sharing Communities are the subject of separate development applications, as proposed in the SEE, that the requirements of the clause will be met. This was not cavilled with by the Council.
Having regard to the statutory framework applying to concept development applications, it is not correct, as NCV contends, to say that the concept DA is not a "development application" as that term is defined in s 1.4 of the EPAA - it is, as the text and context of the EPAA makes plain. This was the conclusion reached in Uniting, Local Democracy and Bay Simmer (on this point). There is no warrant in either the text or context of either the EPAA or cl 4(1) of Sch 5 of the Primary Production SEPP for construing the terms "development application", "development consent" or "development" in Div 4.4 of Pt 4 of the EPAA to achieve a contrary result. Consent to a concept development application authorises the carrying out of the "development" the subject of that application under Pt 4 of the Act.
Nor is it correct to characterise a concept development application as a "special kind" of development application that transcends statutory prohibitions on or preconditions to the exercise of the power to grant consent to a concept development. A concept development application is, as s 4.22(1) expressly states, a "development application" (as defined in s 1.4) that sets out the concept proposal for the "development" (also as defined) of a site.
NCV further argued that an approval to a concept development application does not authorise the carrying out of "development". This submission likewise cannot be accepted for similar reasons. To reiterate, any consent will be to the development the subject of the concept DA, which in this case is the concept proposal (10 x Rural Land Sharing Communities) and the Stage 1 works.
If there are preconditions to the exercise of the statutory power of a consent authority to grant consent, these preconditions must be met for the power to be lawfully exercised. This is an entirely orthodox proposition that was the gravamen of Uniting and that is not, contrary to the submission of NCV, inconsistent with the decision in Local Democracy.
In Local Democracy, which concerned proceedings in Class 4 of the Court's jurisdiction, it was held that upon the proper construction of the determinative provisions of the SLEP and SEPP 55, the relevant Minister was not required to form an opinion about matters relevant only to a later stage of the development, such as design excellence contained in cl 6.21 of the SLEP, for which a separate consent would be required. Similarly, the requirements contained in cl 7(1) of SEPP 55 applied to the next stage of the project which would be the subject of a further development application and grant of consent by the Minister. Each finding turned upon the outcome of the interpretative task undertaken by the Court of the statutory instruments in question.
An analysis of the text and context of cl 4(1)(a) of Sch 5 of the Primary Production SEPP yields, in my view, a different result. Unlike the provisions under consideration in Local Democracy, the constraint contained in cl 4(1)(a) of Sch 5 of the Primary Production SEPP is a matter that is relevant to the exercise of the power of the consent authority to determine the concept DA and the concept proposals contained within it; it is not merely directed to the further development contemplated by future development applications. The consent authority is required by cl 4(1)(a) to form an opinion about a matter relevant to the present stage of the development as described in the concept DA.
NCV did not submit that cl 4(1)(a) had no application whatsoever to the concept proposal, rather, it submitted that it had no application to the concept DA insofar as that development application did not seek consent in respect of development. As explained above, this argument ought to be rejected.
Importantly, cl 4(1)(a) uses the present tense and looks to the existing state of affairs concerning the description of the land. Other subparagraph in cl 4(1) use either future tenses or a shifting tense. This is a deliberate choice by the drafter of the provision and a strong textual and contextual indicator that the reference to the land in the present tense in cl 4(1)(a) is a reference to the land in its current state, that is, as at the time the concept DA was lodged (Michael Brown Planning Strategies Pty Ltd v Wingecarribee Shire Council [2020] NSWCA 137; (2020) 247 LGERA 221 at [25]- [26]). Therefore, the precondition to the grant of consent is either satisfied or not satisfied at this juncture. If the latter, then the power to grant consent cannot be exercised by the consent authority.
The provisions of the Primary Production SEPP, including cl 4(1)(a) of Sch 5, apply to concept proposals given the wide import of the words "for the purposes of" in the chapeau to that clause. As a consequence, the consent authority must be satisfied of the matters contained in that clause. They are a statutory precondition to the exercise of the power to grant consent. The concept DA did not seek approval merely for the Stage 1 works but also for the concept proposals, in particular, the creation of 10 x Rural Land Sharing Communities, or put another way, for development on land for the purposes of three or more dwellings, which in inherent in the creation of a rural land sharing community (cl 4(1) of the Primary Production SEPP). It is this concept proposal that required compliance with cl 4(1)(a) of the Primary Production SEPP. Until the consent authority is satisfied that the land is a single lot with an area of not less than 10 ha (it is presently 21 lots) consent cannot be granted.
It therefore does not matter that, as the concept DA expressly states, the question of subdivision and lot size will arise subsequently and be the subject of further development applications. The constraint in cl 4(1)(a) of Sch 5 of the Primary Production SEPP is engaged immediately and not at some later stage of the concept development.
NCV argued that just as it would have been "very odd" if cl 7(1) of SEPP 55 in Local Democracy (at [103]) required the same issue of contamination to be addressed multiple times as that project moved through consecutive stages, including at the initial concept development application stage, so too would an interpretation of cl 4(1)(a) of Sch 5 of the Primary Production SEPP that required both Stage 1 and Stages 2-12 of the project to be assessed against the requirement of that clause. Such a construction would be contrary to the statutory scheme contained in Div 4.4 of Pt 4 of the EPAA, especially s 4.22(5) of the EPAA. It would also be incongruent with the aims of Sch 5 of the Primary Production SEPP as set out in cl 2, inasmuch as it would be likely to discourage and impede the development of rural land sharing communities.
Section 4.22(5) is, however, directed to the impact of the development under s 4.15 of the EPAA, which is not presently relevant. Unlike a planning provision dealing with design excellence, for example, cl 4(1)(a) of Sch 5 of the Primary Production SEPP is not a clause dealing with the impact of the development for the purposes of the consideration mandated by s 4.15 of the EPAA. It therefore has no application to the question of whether compliance with cl 4(1) is necessary in order to grant consent to the concept DA.
Moreover, cl 2 of Sch 5 of the Primary Production SEPP expressly states that it "aims to encourage and facilitate the development of rural land sharing communities...by" enabling people who collectively own a single lot to erect multiple dwellings on the lot absent subdivision. A concept development application that complies with cl 4(1)(a) serves to promote this aim. The concept DA contradicts the aims and purpose of Sch 5 because of its dependence upon dividing up the lots by subdivision and because it is not directed to "people who collectively own a single lot". As the Council noted, ownership is proposed to be held by corporate ownership and no single lot is proposed to be developed in its existing state without subdivision.
The construction of cl 4(1)(a) of Sch 5 of the Primary Production SEPP posited above is also consistent with the definition of "prohibited development" contained in s 1.4. I accept NCV's submission that the development the subject of the concept DA is not prohibited development pursuant to the first limb of the definition in subparagraph (a). There is nothing in the language of cl 4(1)(a) of Sch 5 of the Primary Production SEPP that prohibits the development the subject of that development application. Development for the purpose of rural land sharing communities is not a prohibited land use pursuant to cl 2.3(1)(d) of the LEP. In relation to the second limb of the definition of "prohibited development" in subparagraph (b) of s 1.4 of the EPAA, cl 4(1)(a) of the Primary Production SEPP permits consent to be granted provided that the statutory precondition to the exercise of the consent authority's discretionary power is fulfilled. The development is permissible with consent, or put another way, it "cannot be carried out on land...without consent." Consent can only be granted if the consent authority is satisfied of the matters set out in cl 4(1)(a).
NCV eschewed any consideration of permissibility at the concept DA stage because this is a matter to be assessed in the future and will require other steps to be completed to authorise the concept development (such as subdivision). However, as the Council observed, the logical corollary of NCV's ambitious submission is that no concept development application could ever be prohibited development irrespective of the requirements of any planning instrument. This cannot be correct.
There is also no support in the EPAA for the approach posited by NCV whereby permissibility is considered at some future juncture in respect of concept development applications. First, as the Council observed, the concept proposals may never materialise. Second, the regulatory regime may change which may make it necessary to determine any subsequent stage development applications in terms of the legislative framework in existence at the time that the initial concept development application was consented to, to avoid inconsistency with s 4.24(2) of the EPAA.
Finally, the Council argued that the issue of whether consent to a concept development application for prohibited development can be granted if later stages of the development become permissible was explicitly rejected by the Court in Olsson v Gouldburn Mulwaree Council [2010] NSWLEC 169; (2010) 176 LGERA 71 (at [37]-[38]). In that case, Craig J held that the staged development application provisions cannot be invoked unless the overall development proposed, even if in a conceptual form, is permissible development.
In Olsson the question for separate determination was whether a dwelling house was required to be standing on the subject land before development consent could be granted to the erection of one or more rural dwellings upon it (at [4]). The question was answered in the affirmative after finding that the development was prohibited (at [42]). Although the development application had not been lodged as a staged development application, the applicant requested that it be dealt with in this manner pursuant to s 83B(2) of the EPAA (now s 4.22(3)) (the proceedings were in Class 1 of the Court's jurisdiction). One of the issues raised for determination was whether in the context of the stage development provisions of the EPAA, it was open to the Court to grant development consent to some part or parts of the development sought in the development application. Craig J held that it was not because the development was prohibited. The Council submitted that the principle of judicial comity applies and that Olsson should be followed in the resolution of the first separate question.
In my opinion, the principle of comity does not arise in circumstances where:

[72]

The third question was included at the request of the Council. Its meaning remains opaque.
The Council submitted that the development the subject of the concept DA involves the creation of rural land communities on 10 lots on which dwellings are proposed, with one lot of 44 ha as a village centre, part of which will be used for access to other lots, and almost none of which are self-contained, thereby requiring infrastructure to be constructed on other lots.
According to the Council, even if the concept DA was confined to a succession of development applications each independent of each other, the only land upon which a rural land sharing community could be lawfully developed was existing Lot 4, however, that was not land to which the concept DA relates. The concept proposals involve the use of each of the lots and does not result in self-sufficient communities. This is not the type of development contemplated by Sch 5 of the Primary Production SEPP.
In response, NCV argued that although the concept DA applies to a number of lots, consistent with s 4.22(1) of the EPAA development consent was not being sought to carry out the development the subject of subsequent staging on those lots. Because these works were not proposed to be carried out as part of any consent to the concept DA, the power of the Court to grant consent to the concept DA was unconstrained other than by the matters set out in cl 4(1) of Sch 5, in which case NCV repeated and relied upon the submissions it made above in relation to the first and second separate questions.
As is apparent from the discussion concerning resolution of the first and second separate questions, although the concept DA applies to several lots, development consent is not being sought to carry out the development the subject of subsequent stages in conformity with s 4.22(1) of the EPAA. This is evident from the content of the concept DA itself and from the SEE. To the extent that roads, infrastructure and rehabilitation are proposed on other lots this will be the subject of subsequent development applications, as set out in the SEE. They are not the subject of the concept DA and do not affect the Court's power to grant consent to it because they are not works proposed to be carried out as part of that consent.
There is, moreover, no requirement, in either cll 2 or 4(1) of the Primary Production SEPP for rural land sharing communities to be self-contained or self-sufficient as the Council suggests.
In any event, as noted above, roads are permissible in the RU2, RU5 and W1 zones of the LEP with development consent, and "environmental protection works", which includes "works associated with the rehabilitation of land", are permissible without consent under that instrument.
If understood correctly, and to the extent that it is not premature to ask the third separate question given that these works will be the subject of subsequent development applications, the answer to the third separate question is that the Court does have the power to grant consent to the concept DA in these circumstances, provided, as discussed in answer to the first and second separate questions, that the statutory preconditions to the grant of power in cl 4(1) of Sch 5 of the Primary Production SEPP are met.

[74]

In a repetition of its submissions in relation to the first and second separate questions, NCV contended that, properly construed, the requirements contained in cl 7 of Sch 5 of the Primary Production SEPP need not be complied with until the later stage development applications fall for determination because the concept DA did not authorise the carrying out of relevant development, and therefore, did not need to meet the required density controls. It was not a matter of contention that the proposed concept development did not comply with cl 7.
There is, in my opinion, a distinction between operation of cl 4(1) of Sch 5 of the Primary Production SEPP and cl 7 of that Schedule for the purpose of answering the fourth separate question. I accept the submission advanced by NCV that cl 7 need not be complied with until consent is sought for later stage development applications for the project.
Contrary to the Council's contention, there is no basis for distinguishing Local Democracy in its application to cl 7 of Sch 5 of the Primary Production SEPP. The text of cl 7 is analogous to cl 7(1) of SEPP 55 and a proper construction of the text and context of cl 7 of Sch 5 of the Primary Production SEPP, such context including s 4.22 of the EPAA, especially s 4.22(4), leads to the same result.
The prohibition in the chapeau to cl 7(1) and (2) of Sch 5 of the Primary Production SEPP is directed to the grant of consent to "development under this Schedule" (rather than "to the carrying out of development on the land"). When regard is had to the development (as that term is defined in s 1.5(1) of the EPAA) the subject of the concept DA, as earlier discussed, it becomes apparent that the development is the concept proposal and the associated road and earthworks for Stage 1 only. Subdivision and the identification of the specific dwellings plots will occur in Stages 2 and 3 of the project and are, as the statutory regime in s 4.22 of the EPAA permits (see ss 4.22(1) and 4.22(4)(b)), to be the subject of later development applications. Compliance with cl 7 of Sch 5 of the Primary Production SEPP is necessary at these later stages of the project. The development identified in the concept DA is not "the subdivision of land" or "the erection of a building", for example, nor does it comprise any form of development that engages the operation of cl 7.
Again, this conclusion is consistent with the statutory scheme promulgated for concept development applications in Div 4.4 of the EPAA. It is also consistent with the aims and purposes of Sch 5 of the Primary Production SEPP set out in cl 2. I would therefore answer the fourth separate question in the affirmative.

[85]

96 The matters in the construction of the definition discussed by Mahoney JA in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) mean that, in order that a provision fall within the definition as a development standard, there must be a development in respect of an aspect of which the provision specifies a requirement or fixes a standard. A provision prohibiting the development in question (the use of land, subdivision of land, erection of a building etc, see the definition of 'development' in the Act) under any circumstances will be a provision controlling development, but it will not be a development standard. The availability of SEPP No 1 will fail at the first step.

97 Beyond this, the debate should be over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development. I consider one can profitably return to the observations of McHugh JA in Woollahra Municipal Council v Carr, to his Honour's reminder of the need to define the development and its aspects before it can be determined whether the provision in question is a development standard. Referring again to the definition of "development standards", there must be a provision in relation to the carrying out of development, and then the provision must specify a requirement or fix a standard in respect of an aspect of that development. Having identified the development in relation to which there is the provision, the aspects of that development must be considered in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development.

98 If the provision does not prohibit the development in question under any circumstances, and the development is permissible in circumstances expressed in the provision (whether positively or negatively, see the forms of provision earlier stated), in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development. In the absence of control, and subject for example to the private law of nuisance, a landowner may develop his land as he sees fit. Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided a relevant aspect of the development is identified the control will be by imposition of a development standard.

99 In the debate over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development, the key will be identification of a relevant aspect of the development. The list of aspects in paragraphs (a) to (n) of the definition of 'development standards' in s 4(1) of the Act shows that a broad view of what is an aspect of a development should be taken. North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) must be regarded as a case in which the majority considered that the provision in substance prohibited the development under any circumstances, not because of something in the definition of the development (see Clarke JA's comments on the observations of McHugh JA in Woollahra Municipal Council v Carr) but because, as part of the environmental planning instrument as a whole, in the prohibition on erection of a residential flat building the governing characteristic was land with adjoining high buildings, so there was relevantly a prohibition on development in any circumstances. Healesville Holding Pty Ltd v Pittwater Council must be explained in a similar way. The other cases cited by the appellant in which provisions were held to be development standards must be regarded as cases in which the development was permitted and there was a relevant aspect of the development in respect of which a requirement was specified or a standard fixed - siting of the building (Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council, Bowen v Willoughby City Council), number of storeys of the building (Scott Revay & Unn v Warringah Council), minimum subdivisible area (Bell v Shellharbour Municipal Council).

[88]

But, as Preston J cautioned in Dib, "the 'essential element' approach to determining whether a provision is a development standard is not without its difficulties" (at [57]).
More recently, this Court has emphasised that from the outset it is necessary to define the development that may be carried out with consent (Dib at [51]). This is because a provision of an environmental planning instrument can only be a development standard within the statutory definition if it is "in relation to the carrying out of development" (Poynting at [96], Agostino v Penrith City Council [2010] NSWCA 20; (2010) 172 LGERA 380 at [49] and Dib at [50]). As Mahoney JA in Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222 observed (at 234), there is a distinction between a provision in the form of "on land of characteristic X no development may be carried out" and one that says "on such land development may be carried out in a particular way or to a particular extent". While the former is not a development standard, the latter is.
In order to determine whether cl 7 of Sch 5 of the Primary Production SEPP is a development standard, it is necessary to consider the terms and structure of the particular planning instrument under consideration (Agostino at [30] and [43]). As stated above, the concept proposal the gravamen of the concept DA is the establishment of 10 x Rural Land Sharing Communities and the road and earthworks to be carried out under Stage 1. Having regard to definitions of "development" and the "carrying out of development" in s 1.5 of the EPAA, cl 7 is a provision in relation to the carrying out of development under Sch 5 of the SEPP. The structure of cl 7 of Sch 5 is that it, first, sets a prohibition on the grant of development consent to specified development, namely, "development under this Schedule", and second, it relaxes that prohibition if "the development would result in more than" the number of dwellings on the land specified in cl 7(1), or the number of persons accommodated in all of the dwellings on the land in cl 7(2). Clause 7 does not operate to define the development that is to be carried out with consent. Rather, it specifies the circumstances in which a consent authority can or cannot grant development to a rural land sharing community that exceeds the density restrictions for that land. In other words, the density requirements are not an essential element of the development, rather they condition the exercise of power to grant consent. Clause 7 is a provision relating to the carrying out of the development specified in the concept DA on that land for the purpose of establishing 10 x rural land sharing communities by regulating the circumstance in which development can be granted to that development (Dib at [62]-[63]).
On this construction, cl 7.11 answers the description of the statutory definition of "development standards" of a provision "in relation to the carrying out of a development", namely, development for the purpose of establishing rural land sharing communities, that specifies a requirement or fixes a standard in respect of the density of the development.
If the two-step approach in Ponting is adopted, the same conclusion is reached because:

[92]

The Court concluded that the bar said to arise from the conditional term in cl 15 of the Housing SEPP did not arise as a result of the overriding effect of cl 4.6(2) that permitted the upholding of the objections to render the development standards in the Housing SEPP no longer applicable (at [94]). To similar effect are the decisions in Principal Healthcare Finance Pty Ltd v Ryde City Council [2016] NSWLEC 153; (2016) 222 LGERA 212 (at [77]-[78]) and Georgakis v North Sydney Council [2004] NSWLEC 123; (2004) 140 LGERA 379 (at [42]-[43]).
Applying these decisions here, properly construed, cl 1 of Sch 5 of the Primary Production SEPP merely identifies the local environmental plans of which it forms a part and does not impose the limitation contended for by the Council. To the extent that cl 1 "has effect despite any other provision of" the LEP, this does no more than identify that it operates to provide for the granting of development consent to development on land to which Sch 5 of the Primary Production SEPP applies (RIG Consulting Pty Ltd v Queanbeyan-Palerang Regional Council [2021] NSWCA 130; (2021) 249 LGERA 377 at [22], [53]-[55] and [68]). The power to grant consent is nevertheless to be exercised subject to the constraints imposed by cll 4 and 7 of Sch 5 of the Primary Production SEPP. There is, therefore, no overlap in the spheres of operation of cl 4.6 of the LEP and cll 4 and 7 of Sch 5 of the SEPP; one instrument or clause is not subordinate to the other. Clause 7 of the Primary Production SEPP does no more than regulate development that is permissible with consent under that instrument. Viewed this way, there is no inconsistency where cl 4.6 applies to permit a contravention of a development standard only if the development is otherwise permissible with consent under the Primary Production SEPP.
The decision in Elimatta Pty Ltd v Read [2021] NSWLEC 75 does not assist the Council having regard to the different wording of cl 4.1B of the local environmental plan the subject of that decision.
Finally, the Council submitted that cl 7 contains no evaluative criteria which speaks against its characterisation as a development standard. While generally this is the case, an absence of evaluative criteria is not in and of itself fatal to the conclusion that cl 7 is a development standard.
It follows that cl 1 of Sch 5 of the Primary Production SEPP does not expressly exclude the operation of cl 4.6 of the LEP and, consistent with authority, cl 4.6(2) of the LEP remains operative for the purpose of granting dispensation from compliance with the development standard contained in cl 7 of Sch 5.

Parties

Applicant/Plaintiff:

NCV Enterprises Pty Ltd

Respondent/Defendant:

Tweed Shire Council

Legislation Cited (3)

Planning and Assessment Act 1979

Environment Court Rules 2007

Civil Procedure Rules 2005

Cases Cited (26)

The Power of the Court to Grant Consent to the Concept DA

Division 4.4 of the EPAA applies to concept development applications and to consents granted on the determination of those applications (s 4.21 of the EPAA).
It is important, however, to recall that a concept development application is nevertheless a development application under the EPAA (The Uniting Church in Australia Property Trust (NSW) v Parramatta City Council [2018] NSWLEC 158 at [36] per Preston J). The provisions of the EPAA relating to development applications and development consents, apply equally to concept development applications and consents granted to such applications (Uniting at [36]).
The fact that a concept development application involves seeking consent for "development" as defined in s 1.5 of the EPAA was examined in the decision in Bay Simmer Investments Pty Ltd v New South Wales [2017] NSWCA 135; (2017) 222 LGERA 286. Relevantly for present purposes, the Court of Appeal held that the court below had erred in finding that the staged development application in that case did not seek consent for "development" pursuant to the EPAA. As Basten JA emphasised (at [65]): 65 Further, the fact that consent to a staged development application will not allow any activity to be carried out does not alter the fact that the development application is an application to carry out "development", which includes the use of land, the erection of a building and the carrying out of a work. There is no basis in the statutory scheme to conclude that any part of the definition is not engaged by a staged development application dealing with "the development of a site".
In that case, the Court of Appeal held that s 83B, since repealed, when read in conjunction with other provisions of the EPAA as it stood at the time, required the Minister to consider the likely environmental impacts of the staged development, including construction related impacts, when determining whether or not to grant consent to the staged development application. While subsequent changes to the EPAA have had the effect of rendering otiose some of the reasoning in that decision (especially the promulgation of s 4.22(5) of the EPAA), his Honour's remarks remain apposite.
A "concept development application" is defined in s 4.22(1) as a "development application" that sets out concept proposals for the "development" of a site, and for which detailed proposals for the site or separate parts of the site are to be the subject of subsequent development applications (Local Democracy Matters Inc v Infrastructure NSW [2019] NSWCA 65; (2019) 237 LGERA 74 at [73]). The "development" of the site referred to in s 4.22(1) of the EPAA has the meaning ascribed to that term in s 1.5(1) of that Act.
A concept development application seeks consent for development in the same manner that a development application does (s 4.22(5) of the EPAA). As a consequence, the consent authority must consider the likely impacts of the concept development under s 4.15 of the EPAA and take into consideration the matters contained in that provision insofar as they are relevant, including the provisions of any environmental planning instrument (s 4.15(1)(a)(i) and Local Democracy at [22]). Clause 4(1)(a) of Sch 5 of the Primary Production SEPP is a provision of a relevant environmental planning instrument and must be considered by a consent authority in determining whether or not to grant consent to the concept DA.
A consent authority determines a concept development application under the same power as it determines all development applications, that is, s 4.16 of the EPAA. It does so either by granting consent to the application subject to conditions or unconditionally, or by refusing consent. Conditions are imposed pursuant to s 4.17 of the EPAA. A concept development consent must also conform to the requirements of s 4.22(4) of the EPAA.
A consent granted on the determination of a concept development application for a site sets the parameters for the determination of any further development application in relation to that site. In particular, s 4.24(2) of the EPAA states that while a concept development consent in respect of a site remains in force, any determination of a further development application in respect of the site cannot be inconsistent with the consent for the concept proposal for the development of the site.
That detailed plans for the development of a site the subject of concept proposals will be the subject of subsequent development applications was recognised by the Court in Uniting Church, when it was observed that cl 7.10 of the Parramatta Local Environmental Plan 2012 only required the consent authority to have regard to matters that were relevant to the concept development application (at [55]).
Uniting Church was applied in Local Democracy. In the latter case, the Court of Appeal accepted that the relevant Minister only had to form an opinion as to design excellence as required by cl 6.21 of the Sydney Local Environmental Plan 2012 ("SLEP") by reference to matters that are relevant to the concept application and not to a later stage of the development for which separate consent was required (at [73]). It therefore followed that not all matters identified in cl 6.21(4) of the SLEP were relevant to a concept development application, for example, matters referring to a high standard of architectural design, materials and detailing (at [74]).
Significantly for present purposes, the Court rejected the argument that cl 7 of State Environment Planning Policy No 55 - Remediation of Land ("SEPP 55") required the Minister to consider the question of contamination of the development site by reference to the work the subject of the concept development application (at [103]).
Clause 7(1) of SEPP 55 was in the following terms (at [88]): 7 Contamination and remediation to be considered in determining development application (1) A consent authority must not consent to the carrying out of any development on land unless - (a) it has considered whether the land is contaminated, and (b) if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and (c) if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.
The issue was described by the Court as follows (at [94] and [95]): 94 It is common ground that if the Minister failed to comply with cl 7 of SEPP 55 he committed a jurisdictional error, thereby rendering the development consent invalid (subject to discretionary considerations). LDM did not pursue on the appeal all the arguments upon which it relied before the primary judge to establish a breach of cl 7 of SEPP 55. However LDM did submit that the Minister failed to comply with cl 7 because he gave consideration only to whether the buildings to be demolished during Stage 1 of the proposed works were contaminated. Mr Robertson submitted that on the proper construction of cl 7 of SEPP 55 the Minister was obliged, before granting consent to the Concept DA, to consider whether the land on which the new stadium was to be constructed was contaminated and whether it required remediation for the project to be completed. 95 Mr Robertson contended that s 7(1)(b) and (c) of SEPP 55 required the Minister to consider the question of contamination by reference to the work involved in completing the project contemplated by the Concept DA. This contention rested in part on construing the word "land" in cl 7 to include the subsoil, which would necessarily be disturbed during Stage 2 of the project (when the new stadium is to be constructed). But it was central to his submission that the expression "suitable for the purpose for which development is proposed to be carried out" in cl 7(1)(b) and (c) of SEPP 55 referred to the purpose of redeveloping the Stadium, including the work required to construct a new stadium. While Stage 1 of the Concept DA was limited to demolition of existing buildings on the site, those works were just the first stage in carrying **102 out the concept proposal to redevelop the Stadium. In short, the Concept DA sought consent to an integrated proposal for the rebuilding of the Stadium to be achieved in stages.
In rejecting the appellant's contentions, the Court of Appeal opined that (at [98]-[104]): 98 If each of the subparagraphs of cl 7(1) of SEPP 55 is read in isolation the construction proposed by Mr Robertson might be open. But cl 7 has to be construed in context. The context includes relevant provisions of the EPA Act. 99 Section 4.22(4) of the EPA Act expressly provides that a consent granted on the determination of a concept development application does not authorise the carrying out of development on any part of the site unless: • consent is subsequently granted to carry out development on that part of the site following a further development application, or • the concept development application also provided details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent. Section 4.22(4) also provides that the terms of a consent granted on the determination of a concept development application are to reflect the operation of the subsection. 100 Clause 7(1) of SEPP 55 prohibits the carrying out of any development on land unless the requirements of subcl (a), (b) and (c) are satisfied. The expression "carrying out of development" is defined in s 1.5(3) of the EPA Act **103 to mean "the doing of the acts … referred to in [s 1.5(1) of the EPA Act]". Section 1.5(1) defines "development" to mean any one of six acts, matters or things, one of which is "the demolition of a building or work". 101 The Concept DA sought to carry out only one form of development, namely the demolition of buildings to be carried out during Stage 1. Consent to the concept proposal did not authorise any further development to be carried out on the site beyond the works involved in Stage 1. Further development, in particular the construction of the new stadium, required a separate development application and the grant of consent by the Minister to that application. Before granting any such consent the Minister would have to take into account the matters and form the opinion required by the legislation and subordinate instruments. 102 The prohibition in the chapeau to cl 7(1) of SEPP 55 is directed to the grant of consent "to the carrying out of development on the land". In the present case the only consent sought for the carrying out of development was to the demolition of buildings to be carried out during Stage 1 of the project. In these circumstances the reference to "the carrying out of any development on the land" in the chapeau is therefore to the carrying out of the demolition work proposed in Stage 1 of the project. 103 Clause 7(1)(b) and (c) each use the expression "the purpose for which the development is proposed to be carried out". The development proposed to be carried out is the carrying out of demolition work during Stage 1 of the project. The purpose for which the demolition work is to be carried out is to ready the site for the next stage of the project - that is, the construction of the new stadium. As contemplated by s 4.22(1) of the EPA Act the next stage of the project will require detailed proposals for the site which will be the subject of a subsequent development application or applications. The Minister will therefore be required to assess the development application in relation to Stage 2 of the project by reference to the requirements specified in cl 7(1) of SEPP 55. It would be very odd if cl 7(1) required the same issues of contamination to be addressed at different times as the project moved through consecutive but separate stages. 104 This conclusion is consistent with the scheme established for concept development applications by s 4.22 of the EPA Act. It is also consistent with the object of SEPP 55 stated in cl 2. There is no risk of harm to human health or the environment if each stage of a concept proposal is subject to the rigorous requirements of SEPP 55.
Construing cl 7 of SEPP 55 in its statutory context, the Court held that the prohibition in the chapeau of cl 7(1) of the SEPP 55 was directed to the grant of consent "to the carrying out of development on the land" as that phrase is defined in s 1.5(3) of the EPAA. The only form of development for which consent was sought in the concept development application was the demolition of buildings that was to be carried out during Stage 1. Consent to the concept proposal did not authorise any further development to be carried out on the site beyond the works contemplated in Stage 1. Any further development, such as the construction of a new stadium, required a separate development application and a separate consent. Before granting any such consent the Minister would have to take into account the matters, and form the opinions, required by the legislation and any subordinate instruments.
Because the prohibition in cl 7(1) of SEPP 55 was directed to the grant of consent "to the carrying out of development on the land", and the only consent initially sought was for the demolition of buildings during Stage 1 of the project, the reference "to the carrying out of development on the land" was to the work proposed in Stage 1 and no more.
Similar reasoning was applied to those clauses referring to "the purpose for which the development is proposed to be carried out". It was the next stage of the project, namely, the actual construction of the stadium, that demanded detailed proposals for the site which would be the subject of subsequent development applications. Clause 7(1) of the SEPP had to be addressed not at Stage 1, but at Stage 2 of the project, to avoid the same issue of contamination being considered at different and multiple times as the project moved through various stages of development. This is what s 4.22(1) of the EPAA contemplated and such a conclusion was consistent with the objects of SEPP 55.
It is within this statutory context that cl 4(1)(a) of Sch 5 of the Primary Production SEPP must be construed.
As the statutory scheme makes plain, consent by a consent authority (in this instance, the Court) to a concept development application results in a development consent for the purposes of Pt 4 of the EPAA. There is nothing about the definition of "development" in s 1.5 that divorces it from a concept development or takes a concept development application, and any consent granted pursuant to it, outside the regulatory regime with respect to development applications and development consents contained in Pt 4 of the EPAA.
The Primary Production SEPP is an instrument made under the EPAA, and the terms used in that SEPP have the same meaning as the Act unless the contrary intention applies (ss 5(2) and 11 of the Interpretation Act 1987). Having regard to the text and context of cl 4(1)(a), there is no warrant for construing the words "development consent" in that clause as excluding, as NCV suggests, consent to a concept development application.
In the present case, NCV made a development application that sets out a concept proposal for multiple Rural Land Sharing Communities. More specifically, the concept DA seeks consent for 10 x Rural Land Sharing Communities and Stage 1 roadworks and earthworks on the identified land, and refers to the SEE for further details. The SEE makes it plain that Stage 1 is concerned with road access and earthworks only. Approval to subdivide the site and to establish the plots comprising the Rural Land Sharing Communities (Stages 2-12) is to occur in subsequent development applications.
The SEE goes on to explicitly state that to facilitate the intended layout and yield for 10 x Rural Land Sharing Communities, existing lots and their boundaries will be required to be altered and will be the subject of a future development application. The Concept Plan indicates the preferred subdivision layout for the site, which is to amalgamate the current 21 lots into 10 x Rural Land Sharing Communities lots and 1 Village lot.
Table 12 of the SEE sets out the area and the number of dwellings on each of the proposed lots following the subdivision of the site in Stage 2 and the maximum number of dwellings permitted per lot in conformity with the density requirement of cl 7 of Sch 5 of the Primary Production SEPP. The SEE then proceeds to describe the proposed future staging of the development in detailed terms. It states that Stages 1 and 2 are only concerned with the creation of master allotments.
By reason of cl 1 of Sch 5 of the Primary Production SEPP, in order to understand the effect of cl 4(1)(a) of that planning instrument on the concept DA, consideration must also be given to the LEP. The LEP proscribes which development may be carried out without development consent, with development consent, or which is prohibited (cl 2.3). This tripartite approach conforms with Div 4.1 of Pt 4 of the EPAA (see ss 4.1, 4.2 and 4.3 of that Act).
Subdivision is permissible in the RU2, RU5 and W1 zones pursuant to cl 2.6 of the LEP, and the construction of roads is permissible. Moreover, environmental protection works (the works contemplated by Stage 1), which includes "works associated with the rehabilitation of land", are permissible without consent under that instrument. Rural land sharing communities is, however, not a recognised use under the LEP and the zoning tables are silent in respect of it.
Clause 2.3(4) of the LEP provides that cl 2.3 is subject to the other provisions of the LEP, including Sch 5 of the Primary Production SEPP (by reason of the operation of cl 1 of that Schedule which acts to incorporate it into the LEP), and therefore, cl 4(1)(a) of Sch 5 of the Primary Production SEPP. Accordingly, rural land sharing communities are subject to the constraints imposed by cl 4(1)(a) on the granting of consent. Put another way, consent for a rural land sharing community development may be granted provided that the requirements of cl 4(1)(a) of Sch 5 of the Primary Production SEPP are met.
As the discussion in the authorities referred to above establishes, the terms "development consent" and "development" in the chapeau of cl 4(1) carry the same meaning as the definitions given to them in the EPAA. This is harmonious with Divs 4.1 and 4.4 and, in particular, s 4.22 of that Act.
As observed earlier, it is not in dispute that because the concept DA applies to approximately 1,600 ha of land made up of 21 lots, the requirements of cl 4(1)(a) of Sch 5 of the Primary Production SEPP cannot presently be satisfied. It is, however, the intention of the proponent, after subdivision in later stages of the project and because each of the Rural Land Sharing Communities are the subject of separate development applications, as proposed in the SEE, that the requirements of the clause will be met. This was not cavilled with by the Council.
Having regard to the statutory framework applying to concept development applications, it is not correct, as NCV contends, to say that the concept DA is not a "development application" as that term is defined in s 1.4 of the EPAA - it is, as the text and context of the EPAA makes plain. This was the conclusion reached in Uniting, Local Democracy and Bay Simmer (on this point). There is no warrant in either the text or context of either the EPAA or cl 4(1) of Sch 5 of the Primary Production SEPP for construing the terms "development application", "development consent" or "development" in Div 4.4 of Pt 4 of the EPAA to achieve a contrary result. Consent to a concept development application authorises the carrying out of the "development" the subject of that application under Pt 4 of the Act.
Nor is it correct to characterise a concept development application as a "special kind" of development application that transcends statutory prohibitions on or preconditions to the exercise of the power to grant consent to a concept development. A concept development application is, as s 4.22(1) expressly states, a "development application" (as defined in s 1.4) that sets out the concept proposal for the "development" (also as defined) of a site.
NCV further argued that an approval to a concept development application does not authorise the carrying out of "development". This submission likewise cannot be accepted for similar reasons. To reiterate, any consent will be to the development the subject of the concept DA, which in this case is the concept proposal (10 x Rural Land Sharing Communities) and the Stage 1 works.
If there are preconditions to the exercise of the statutory power of a consent authority to grant consent, these preconditions must be met for the power to be lawfully exercised. This is an entirely orthodox proposition that was the gravamen of Uniting and that is not, contrary to the submission of NCV, inconsistent with the decision in Local Democracy.
In Local Democracy, which concerned proceedings in Class 4 of the Court's jurisdiction, it was held that upon the proper construction of the determinative provisions of the SLEP and SEPP 55, the relevant Minister was not required to form an opinion about matters relevant only to a later stage of the development, such as design excellence contained in cl 6.21 of the SLEP, for which a separate consent would be required. Similarly, the requirements contained in cl 7(1) of SEPP 55 applied to the next stage of the project which would be the subject of a further development application and grant of consent by the Minister. Each finding turned upon the outcome of the interpretative task undertaken by the Court of the statutory instruments in question.
An analysis of the text and context of cl 4(1)(a) of Sch 5 of the Primary Production SEPP yields, in my view, a different result. Unlike the provisions under consideration in Local Democracy, the constraint contained in cl 4(1)(a) of Sch 5 of the Primary Production SEPP is a matter that is relevant to the exercise of the power of the consent authority to determine the concept DA and the concept proposals contained within it; it is not merely directed to the further development contemplated by future development applications. The consent authority is required by cl 4(1)(a) to form an opinion about a matter relevant to the present stage of the development as described in the concept DA.
NCV did not submit that cl 4(1)(a) had no application whatsoever to the concept proposal, rather, it submitted that it had no application to the concept DA insofar as that development application did not seek consent in respect of development. As explained above, this argument ought to be rejected.
Importantly, cl 4(1)(a) uses the present tense and looks to the existing state of affairs concerning the description of the land. Other subparagraph in cl 4(1) use either future tenses or a shifting tense. This is a deliberate choice by the drafter of the provision and a strong textual and contextual indicator that the reference to the land in the present tense in cl 4(1)(a) is a reference to the land in its current state, that is, as at the time the concept DA was lodged (Michael Brown Planning Strategies Pty Ltd v Wingecarribee Shire Council [2020] NSWCA 137; (2020) 247 LGERA 221 at [25]-[26]). Therefore, the precondition to the grant of consent is either satisfied or not satisfied at this juncture. If the latter, then the power to grant consent cannot be exercised by the consent authority.
The provisions of the Primary Production SEPP, including cl 4(1)(a) of Sch 5, apply to concept proposals given the wide import of the words "for the purposes of" in the chapeau to that clause. As a consequence, the consent authority must be satisfied of the matters contained in that clause. They are a statutory precondition to the exercise of the power to grant consent. The concept DA did not seek approval merely for the Stage 1 works but also for the concept proposals, in particular, the creation of 10 x Rural Land Sharing Communities, or put another way, for development on land for the purposes of three or more dwellings, which in inherent in the creation of a rural land sharing community (cl 4(1) of the Primary Production SEPP). It is this concept proposal that required compliance with cl 4(1)(a) of the Primary Production SEPP. Until the consent authority is satisfied that the land is a single lot with an area of not less than 10 ha (it is presently 21 lots) consent cannot be granted.
It therefore does not matter that, as the concept DA expressly states, the question of subdivision and lot size will arise subsequently and be the subject of further development applications. The constraint in cl 4(1)(a) of Sch 5 of the Primary Production SEPP is engaged immediately and not at some later stage of the concept development.
NCV argued that just as it would have been "very odd" if cl 7(1) of SEPP 55 in Local Democracy (at [103]) required the same issue of contamination to be addressed multiple times as that project moved through consecutive stages, including at the initial concept development application stage, so too would an interpretation of cl 4(1)(a) of Sch 5 of the Primary Production SEPP that required both Stage 1 and Stages 2-12 of the project to be assessed against the requirement of that clause. Such a construction would be contrary to the statutory scheme contained in Div 4.4 of Pt 4 of the EPAA, especially s 4.22(5) of the EPAA. It would also be incongruent with the aims of Sch 5 of the Primary Production SEPP as set out in cl 2, inasmuch as it would be likely to discourage and impede the development of rural land sharing communities.
Section 4.22(5) is, however, directed to the impact of the development under s 4.15 of the EPAA, which is not presently relevant. Unlike a planning provision dealing with design excellence, for example, cl 4(1)(a) of Sch 5 of the Primary Production SEPP is not a clause dealing with the impact of the development for the purposes of the consideration mandated by s 4.15 of the EPAA. It therefore has no application to the question of whether compliance with cl 4(1) is necessary in order to grant consent to the concept DA.
Moreover, cl 2 of Sch 5 of the Primary Production SEPP expressly states that it "aims to encourage and facilitate the development of rural land sharing communities…by" enabling people who collectively own a single lot to erect multiple dwellings on the lot absent subdivision. A concept development application that complies with cl 4(1)(a) serves to promote this aim. The concept DA contradicts the aims and purpose of Sch 5 because of its dependence upon dividing up the lots by subdivision and because it is not directed to "people who collectively own a single lot". As the Council noted, ownership is proposed to be held by corporate ownership and no single lot is proposed to be developed in its existing state without subdivision.
The construction of cl 4(1)(a) of Sch 5 of the Primary Production SEPP posited above is also consistent with the definition of "prohibited development" contained in s 1.4. I accept NCV's submission that the development the subject of the concept DA is not prohibited development pursuant to the first limb of the definition in subparagraph (a). There is nothing in the language of cl 4(1)(a) of Sch 5 of the Primary Production SEPP that prohibits the development the subject of that development application. Development for the purpose of rural land sharing communities is not a prohibited land use pursuant to cl 2.3(1)(d) of the LEP. In relation to the second limb of the definition of "prohibited development" in subparagraph (b) of s 1.4 of the EPAA, cl 4(1)(a) of the Primary Production SEPP permits consent to be granted provided that the statutory precondition to the exercise of the consent authority's discretionary power is fulfilled. The development is permissible with consent, or put another way, it "cannot be carried out on land…without consent." Consent can only be granted if the consent authority is satisfied of the matters set out in cl 4(1)(a).
NCV eschewed any consideration of permissibility at the concept DA stage because this is a matter to be assessed in the future and will require other steps to be completed to authorise the concept development (such as subdivision). However, as the Council observed, the logical corollary of NCV's ambitious submission is that no concept development application could ever be prohibited development irrespective of the requirements of any planning instrument. This cannot be correct.
There is also no support in the EPAA for the approach posited by NCV whereby permissibility is considered at some future juncture in respect of concept development applications. First, as the Council observed, the concept proposals may never materialise. Second, the regulatory regime may change which may make it necessary to determine any subsequent stage development applications in terms of the legislative framework in existence at the time that the initial concept development application was consented to, to avoid inconsistency with s 4.24(2) of the EPAA.
Finally, the Council argued that the issue of whether consent to a concept development application for prohibited development can be granted if later stages of the development become permissible was explicitly rejected by the Court in Olsson v Gouldburn Mulwaree Council [2010] NSWLEC 169; (2010) 176 LGERA 71 (at [37]-[38]). In that case, Craig J held that the staged development application provisions cannot be invoked unless the overall development proposed, even if in a conceptual form, is permissible development.
In Olsson the question for separate determination was whether a dwelling house was required to be standing on the subject land before development consent could be granted to the erection of one or more rural dwellings upon it (at [4]). The question was answered in the affirmative after finding that the development was prohibited (at [42]). Although the development application had not been lodged as a staged development application, the applicant requested that it be dealt with in this manner pursuant to s 83B(2) of the EPAA (now s 4.22(3)) (the proceedings were in Class 1 of the Court's jurisdiction). One of the issues raised for determination was whether in the context of the stage development provisions of the EPAA, it was open to the Court to grant development consent to some part or parts of the development sought in the development application. Craig J held that it was not because the development was prohibited. The Council submitted that the principle of judicial comity applies and that Olsson should be followed in the resolution of the first separate question.
In my opinion, the principle of comity does not arise in circumstances where: 1. in Olsson different language was used in the relevant provision, namely, that the consent authority "shall not consent to the erection" (at [8]). This is materially different to the text of cl 4(1)(a), viz, "may grant development consent…if satisfied of"; 2. since the decision in Olsson there have been changes to the concept development application provisions in the EPAA; and 3. Olsson was decided before the decision in Local Democracy.
As a consequence, care must be taken in applying the reasoning in Olsson to the present case. Having said this, the decision in Olsson is neither wrong nor plainly wrong, and, in my view, has some analogous application.
For these reasons, the first question should be answered in the negative.

Does the Court Have the Power to Grant Consent to the Concept DA Pursuant to Cl 4.6 of the LEP in Circumstances Where the Requirement of Cl 7 of Sch 5 to the Primary Production SEPP Cannot be Met Until the Consent Authority Considers the Subsequent Development Applications for the Relevant Stages of the Concept Proposal the Subject of the Concept DA?

It is strictly not necessary to answer the fifth separate question in light of the determination of the fourth separate question immediately above. Nevertheless, for the sake of completeness and in case the above conclusion is incorrect, I have proceeded to do so.
Clause 4.6 of the LEP relevantly states: 4.6 Exceptions to development standards (1) The objectives of this clause are as follows - (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant has demonstrated that - (a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and (b) there are sufficient environmental planning grounds to justify the contravention of the development standard.
At issue is whether cl 7 of Sch 5 is a prohibition or a development standard, and if the latter, whether consent be granted to the concept DA by the application of cl 4.6(2) of the LEP notwithstanding that the development standard cannot be complied with.
"Development standards" is defined in s 1.4 of the EPAA to mean: development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of - (a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point, (b) the proportion or percentage of the area of a site which a building or work may occupy, (c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work, (d) the cubic content or floor space of a building, (e) the intensity or density of the use of any land, building or work, (f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment, (g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles, (h) the volume, nature and type of traffic generated by the development, (i) road patterns, (j) drainage, (k) the carrying out of earthworks, (l) the effects of development on patterns of wind, sunlight, daylight or shadows, (m) the provision of services, facilities and amenities demanded by development, (n) the emission of pollution and means for its prevention or control or mitigation, and (o) such other matters as may be prescribed.

(2010) 172 LGERA 380

(2017) 222 LGERA 286

(2004) 140 LGERA 379

(2019) 237 LGERA 74

(2020) 247 LGERA 221

(2010) 176 LGERA 71

(2016) 222 LGERA 212

(2021) 249 LGERA 377

(2001) 116 LGERA 319

(2006) 150 LGERA 130

(1997) 190 CLR 225

(2002) 123 LGERA 179

Cited By (2)

Henroth Pty Ltd v Canterbury-Bankstown Council

Kingshill Development No 1 Pty Ltd v Port Stephens Council

In Poynting Giles JA set out a two-step process for determining whether a control is a development standard (at [96]-[99]): 96 The matters in the construction of the definition discussed by Mahoney JA in North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) mean that, in order that a provision fall within the definition as a development standard, there must be a development in respect of an aspect of which the provision specifies a requirement or fixes a standard. A provision prohibiting the development in question (the use of land, subdivision of land, erection of a building etc, see the definition of 'development' in the Act) under any circumstances will be a provision controlling development, but it will not be a development standard. The availability of SEPP No 1 will fail at the first step. 97 Beyond this, the debate should be over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development. I consider one can profitably return to the observations of McHugh JA in Woollahra Municipal Council v Carr, to his Honour's reminder of the need to define the development and its aspects before it can be determined whether the provision in question is a development standard. Referring again to the definition of "development standards", there must be a provision in relation to the carrying out of development, and then the provision must specify a requirement or fix a standard in respect of an aspect of that development. Having identified the development in relation to which there is the provision, the aspects of that development must be considered in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development. 98 If the provision does not prohibit the development in question under any circumstances, and the development is permissible in circumstances expressed in the provision (whether positively or negatively, see the forms of provision earlier stated), in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development. In the absence of control, and subject for example to the private law of nuisance, a landowner may develop his land as he sees fit. Control by complete prohibition on the development in question will not leave room for requirements or standards. But anything less than complete prohibition means that there can be the development in question, and provided a relevant aspect of the development is identified the control will be by imposition of a development standard. 99 In the debate over the second step, whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development, the key will be identification of a relevant aspect of the development. The list of aspects in paragraphs (a) to (n) of the definition of 'development standards' in s 4(1) of the Act shows that a broad view of what is an aspect of a development should be taken. North Sydney Municipal Council v P D Mayoh Pty Ltd (No 2) must be regarded as a case in which the majority considered that the provision in substance prohibited the development under any circumstances, not because of something in the definition of the development (see Clarke JA's comments on the observations of McHugh JA in Woollahra Municipal Council v Carr) but because, as part of the environmental planning instrument as a whole, in the prohibition on erection of a residential flat building the governing characteristic was land with adjoining high buildings, so there was relevantly a prohibition on development in any circumstances. Healesville Holding Pty Ltd v Pittwater Council must be explained in a similar way. The other cases cited by the appellant in which provisions were held to be development standards must be regarded as cases in which the development was permitted and there was a relevant aspect of the development in respect of which a requirement was specified or a standard fixed - siting of the building (Quinn O'Hanlon Architects Pty Ltd v Leichhardt Municipal Council, Bowen v Willoughby City Council), number of storeys of the building (Scott Revay & Unn v Warringah Council), minimum subdivisible area (Bell v Shellharbour Municipal Council).

In Ku-ring-gai Council v Pathways Property Group Pty Ltd [2018] NSWLEC 73 Moore J considered whether cl 4.6 of the relevant local environmental plan was available to set aside development standards in the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 ("Housing SEPP") for an aged care facility which was otherwise prohibited under the local environmental plan. Clause 15 of the Housing SEPP was in identical terms to cl 1 of Sch 5 of the Primary Policy SEPP. His Honour discussed the relationship between cl 4.6 of the local environmental plan and cl 15 of the Housing SEPP in this way (at [87]-[91]): 87 There are two reasons why I am satisfied that cl 4.6 of the LEP is available to seek dispensation from compliance with each of the three development standards in cl 40(4) of the SEPP. 88 First, I accept that the submission made for the Company that cl 15 of the SEPP is merely descriptive and does not impose the limitation said to arise by the Council. Correctly understood, it merely describes what the various operative provisions in other clauses in Ch 3 seek to effect for any development proposing to take advantage of the beneficial and facultative overriding provisions of the SEPP. That conclusion, in itself, is sufficient to dispose of Ground 1 on a merit basis. 89 However, there is a second and compelling reason why there is no merit in Ground 1. Even if, contrary to my conclusion in the preceding paragraph, cl 15 could be regarded as containing some form of implied restriction, it does not do so in express terms, but could only be inferred as doing so. 90 Whatever cl 15 of the SEPP might be, it is clear what it is not - it is not an express exclusion of the nature envisaged by the second sentence of cl 4.6(2) of the LEP. 91 However, in order to oust cl 4.6 of the LEP, there would need to be an express rather than an implied exclusion of the development standards in cl 40(4) of the SEPP. This arises from the second sentence of cl 4.6(2) set out above at [83]. Because the development standards in cl 40(4) of the SEPP are not expressly excluded from the operation of cl 4.6 of the LEP, the first sentence of cl 4.6(2) remains operative and thus made available below the opportunity for the Company to seek to have its three objections, pursuant to cl 4.6 of the LEP, assessed for the purpose of granting of dispensation from compliance with the development standards in cl 40(4) of the SEPP.