By Alistair Knox and Erin Keogh -
Jurisdictional preconditions to the grant of development consent have come under closer scrutiny since the decision of the Court of Appeal in Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245. The importance of ensuring that all jurisdictional preconditions are satisfied prior to the determination of a development application (‘DA’) have been highlighted in a number of recent cases in the Land and Environment Court (‘LEC’).
Class 1 Development Appeals
11 Church Street Pty Ltd ATF The Trustee for 11 Church Street Discretionary Trust v Newcastle City Council [2022] NSWLEC 1252 (‘11 Church Street’)
11 Church Street demonstrates that if not all jurisdictional preconditions are met, the Court (whether at a contested hearing or pursuant to a proposed agreement pursuant to s 34 of the Land and Environment Court Act 1979 (‘LEC Act’)) will not have lawful authority to determine the relevant development application by the granting of consent. Applicants run the risk of the proceedings being deferred (as was the case in this matter) or dismissed if a precondition has not been met.
The facts in 11 Church Street concerned a DA for the demolition of part of an existing structure and the erection of a 14-storey building, including a café at ground level and shop top housing above.
The parties agreed the proposal satisfied the ‘must not refuse’ standards provided in clause 14 of the former State Environmental Planning Policy (Affordable Rental Housing) 2009 (which has since been transferred to the State Environmental Planning Policy (Housing) 2021). The principal issue for determination by the Court was the issue of car parking, or in this case the provision of no parking.
However, Commissioner Horton was not satisfied that the requirements of cl 7 of the former State Environmental Planning Policy No 55 – Remediation of Land (‘SEPP 55’) (which has since been transferred to State Environmental Planning Policy (Resilience and Hazards) 2021 (‘SEPP Resilience and Hazards’)) had been met. The corresponding provision in the current Policy (section 4.6(1)) prohibits the consent authority from granting consent to a DA 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 Commissioner held there was incomplete knowledge as to whether the development, for the purposes referred to in Table 1 of the Contaminated Land Planning Guidelines, had been carried out on the land in the past (at [108]).
Whilst the Commissioner was of the view that the DA should be approved (on a merits basis), he directed the applicant to provide the Court with a report specifying the findings of a preliminary investigation of the land concerned, carried out in accordance with the Contaminated Land Planning Guidelines.
As this case demonstrates, it is ultimately the applicant’s responsibility to ensure that all jurisdictional preconditions are met, irrespective of whether they are raised by the respondent in the proceedings.
