Land and Environment Court - Working Party


8.11 Development applications amended on appeal

The Local Government and Shires Associations were critical of the Land and Environment Court because, it was alleged, the Court granted consents for developments that had never been subject of an application before the council appealed against. Councils felt their functions had been usurped by the Court and councils ought at least have the opportunity of considering every application before it was decided by the Court. The essential allegation of the Local Government and Shires Associations was that under the guise of amending applications the Court was hearing development applications for the first time.

Until recently it was generally understood that, as a matter of law, an amendment to a development application could not be allowed by the Land and Environment Court unless the development remained substantially the same as that for which permission was originally sought. Recently there have been conflicting decisions in the Land and Environment Court one of which (although obiter) could be read as giving the Court jurisdiction to hear a changed or altered development application, thereby widening the discretion and allowing the Court a much wider latitude than had previously been assumed. The Working Party is also aware that there is a decision of the Chief Judge of the Court reaffirming what was understood, at least until the middle of 2001, to be the law.

During the course of the review, it was suggested to the Working Party that from time to time the Court has consented to a development application that was substantially different from the one considered by the council. Those making the criticism were asked to provide examples of when it had happened in circumstances opposed by the council and none were forthcoming. The first response from the Local Government and Shires Associations was that representatives of councils must have exceeded their authority by consenting to commissioners granting development consents to applications that were never before councils. The Working Party took the view that if this werewas correct, then commissioners had in fact exceeded their jurisdiction and done so with the acquiescence of because of the acquiescence by councils’ representatives and that was a problem for councils to address. The Working Party was of the view that the Court was entitled to assume that councils’ representatives were competent.

Next it was submitted that some commissioners (unnamed) threatened, in effect, if opposition were made to their proposed unauthorised behaviour they would probably consent to a development which ordinarily they would have rejected. Such conduct, if true, would amount to serious misconduct by a commissioner and if brought to the attention of a judge would be regarded as a serious breach of the law. The Working Party again invited councils to give illustrations where it had happened but none was forthcoming.

The Working Party considered the extent to which development applications can be amended on appeal earlier in this report (see 2.2.1 Extent to which development applications may be amended on appeal). The main point to bear in mind is that the It is difficult for the Working Party to get to the bottom of the allegation. The repeated submission of some councils suggests that at least it is their perception that it is occurring. The Working Party acknowledges that it is possible that commissioners may have granted an application for development which had not been relevantly the subject of a development application before the council. But if that happened it must have been with the consent of the council

It is important to bear in mind that the Land and Environment Court has no jurisdiction to determine applications that haved not been made to councils - that at least was the law prior to this year. The remedy available to councils if a commissioner indicates an intention to consent to an application that had not been before the council would be to refer a question of law to the Court. If a development consent was granted to an application that had not been before the council, the council could appeal to a judge of the Court.

The Court, in an apparently unsuccessful attempt to put an end to the allegation referred to above, has taken steps to remind commissioners of the limitations of their functions and powers when hearing development applications and to make it clear that, whether the Court had jurisdiction or not, it could not acquire jurisdiction by consent. The rules of court were amended requiring applicants wishing to amend applications to make application to the Court within 14 days to give councils the opportunity to raise the sort of objections that have been raised in this inquiry. The Chief Judge was not aware of commissioners exceeding their jurisdiction, but she hoped that councils would either bring alleged errors of commissioners to the attention of the Court or cease criticising the Court.

However, and in the event that broader view of discretion prevails,the Working Party is of the opinion that except with the consent of councils or by leave of the Court, an applicant should not be entitled to rely at the hearing on an amended plan of a development proposal unless and until the council has had a reasonable opportunity to consider the plans. The effect of this recommendation if implemented would be to restrict amendments without consent of councils but would still leave parties free to make an application to the Court to amend without having the development being referred back to the council.

This recommendation was regarded as reasonable by the majority of the Working Party. However, Councillor Peter Woods asked to have it recorded that the Local Government and Shires Associations’ submission was that any amendment, no matter how minor, must be referred back to the council before the application is heard by the Court, no matter how unreasonable the conduct of the council in refusing to consent to the matter proceeding to a hearing.

The Local Government and Shires Associations considerhave suggested that any amendment of a development application made in the course of an appeal should automatically trigger a referral of the application back to the local council for reconsideration. This suggestion has the advantage that it would maximise the parties’ chances of reaching a settlement. However, it has the disadvantage that amendments which do not address the council’s reasons for refusal would trigger a referral, even though the council is very unlikely to change its position as a result. In such circumstances, the referral is little more than a source of delay.
The majority of the members of the Working Party therefore do not support the Local Government and Shires Associations’ proposal.

It should be noted that Recommendation 10, which relates to section 82A of the Environmental Planning and Assessment Act 1979, would, if adopted, allow a council to review its determination of an application at any time before an appeal is decided. The Working Party hopes that this will lead to more settlements without increasing delays.

The majority of the members of the Working Party therefore do not support the Local Government and Shires Associations’ proposal.

In light of the above discussion, and for the sake of clarity, the Working Party recommends that Rule 16(b1) of Division 7 of Part 13 of the Land and Environment Court Rules 1996, the purpose of which appears to be to ensure that the Court’s practice in relation to amended development applications is fair to all parties, should be omitted and replaced with the following:

“(b1) except with the consent of the respondent, or by leave of the Court, the applicant shall not be entitled to rely at the hearing upon any amended plans of the development proposal unless and until the respondent has had a reasonable opportunity to consider the amended plans;”

8.12 What law applies to the determination of a development application?

It has been submitted that all development applications should be assessed in accordance with the law as it was when the application was lodged with the council. At present, development applications are to be determined in accordance with the law at the time the decision is made either by the council or by the Court. Thus a council may refuse a development on discretionary grounds and, after an appeal, the Court may be compelled to refuse the application if the planning instrument is changed to make what was once permissible, prohibited. It must be assumed that the Minister when making a planning instrument or amending a planning instrument does so in the public interest. The making (and often amendment) of local environmental plans is the result of lengthy public consultation and, generally speaking, when a change is proposed, members of the public have received notice of it.ample warning about it. Accordingly, the Working Party does not propose to recommend any change in the law. It should be noted however that in recent times a number of amended local environmental plans provide that development applications lodged prior to the date of amendment should be dealt with in accordance with the law as it was at the time of lodgement.


Recommendation 30: Applicable law

The present legal position, that development applications are to be determined in accordance with the law at the time the decision is made (whether by the council or the Court), should be retained.

8.13 Conditions of consent

At present, if a developer wishes to appeal against a condition of consent the approval must be put aside and the whole matter reconsidered.

It has been suggested by the Urban Development Institute of Australia that:

“there should be the ability to argue conditions of consent without putting the whole consent at risk”

“a special manner of section 94 contribution arguments so that there is no delay for the applicant, and the consent is not put at risk.”

8.14 Stamping plans

It has been suggested that the Court should officially stamp the final plan that it approves in order to produce an official certified copy of the plan.

The Working Party is of the view that there is merit in this proposal and it is surprised that there is not some stamp on the plans which currently are sent back to council. It is suggested that, as a minimum, the stamp should include the date of the decision and an indication that the decision of the Court is accurately reflected by the plan.


Recommendation 31: Stamping plans

The Court should stamp plans which are the subject of a development consent granted by it with the date of the determination and an indication that the stamped plans accurately reflect the Court’s determination before being sent back to the council.

8.15 Delivery of reasons for decision

It has been suggested that the Court is sometimes tardy in providing written reasons for decision. For example it has been suggested that:

“there is occasionally an unacceptable delay between the finalisation of the hearing and the issuing of the judgement, up to 4 months in some cases. Such delays are an imposition on the applicant and also prevent council from taking any action on any unauthorised work.”

“the time standard for handing down reserved judgements be amended so that all judgements are handed down within 40 working days of the hearing”

• 50% of reserved judgements in all classes to be delivered within 14 days of hearing;
• 75% are to be delivered within 30 days of hearing; and
• 100% are to be delivered within 90 days of hearing.