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The Importance of Grampian conditions

The recent case of Visionary Investment Group Pty Ltd v Wollongong City Council [2019] discussed the flexibility of imposing a condition of consent when there is insufficient information provided with the development application.

The case involved a development application for a community title subdivision. During the duration of the proceedings, the applicant filed and produced a wide variety of amended plans/reports in support of its application.

One particular issue related to insufficient detail provided by the applicant in respect of ‘upstream’ impacts of off-site wastewater and water supply infrastructure which needed to be built in order to service the proposed subdivided lots. The design for the wastewater site was not put before the Court and Council argued that the development application could not be granted as these plans needed to be assessed.

In reply, the applicant argued that under the processes in Division 5.1 of the Environmental Planning and Assessment Act 1979 the Court has the ability to grant consent based on the fact they are able to give proper consideration and assessment of the ‘upstream impacts’. Noting this, the applicant stated that any consent granted could include conditions necessary to ensure that the div 5.1 processes were followed before commencing development.
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Section 34 Conciliation Conferences – Requirement for Reasons

A recent development consented to by a Commissioner of the Land and Environment Court during a Court mandated section 34 conference has been set aside by the Court of Appeal due to the fact that the Commissioner failed to give proper and adequate reasons for their decision. The Commissioner further failed to give proper reasons with respect to her satisfaction as to the legal perquisites to their power to grant the consent.

Huajun Investments Pty Ltd filed a class 1 appeal against City of Canada Bay Council’s deemed refusal of their DA which sough to demolish pre-existing structures on the DA site and replace it with an 8 storey-residential flat building.

After being sat down for a section 34 conference pursuant to section 34 of the Land and Environment Court Act 1979 (“the Act”) , The Commissioner overseeing the matter granted development consent in accordance with the agreed terms under section 34(3) of the Act. Section 34(3) states that once an agreement is reached, the Commissioner must:
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Is the need for a neutral or better outcome a requirement for success with respect to clause 4.6?

In a recent decision in the Land and Environment Court (LEC), the Court has given further clarification to the type of consideration that needs to be given to clause 4.6 of the standard instrument LEP.

The significant decision was given in the case Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 where Preston CJ clarified the appropriate approach to the consideration of clause 4.6. The importance of this judgment is that a clause 4.6 submission does not require developments which do not comply with the applicable development standard to have a neutral or better environmental planning outcome than a development that does not.

By way of background – a “Clause 4.6” in the standard instrument LEP which permits a consent authority to grant development consent for a development that would contravene a development standard, where the consent authority is satisfied of the following two standards:

  1. a written request from the applicant adequately demonstrating that the compliance with the development standard is unreasonable or unnecessary and that there is sufficient environmental planning grounds to justify the contravention; and
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Mandatory Local Planning Panels

The New South Wales Government on 10 August 2017 passed the Environmental Planning and Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement) Bill 2017 (Bill). The Bill was assented to by the Governor on 14 August 2017 and will have immediate effect. The most notable part of the Bill is that it will require all Council’s in the Greater Sydney and Wollongong regions to have a local planning panel. The intention of the Bill was described by Planning and Housing Minister, Anthony Roberts to bring “transparency, integrity and a high degree of probity” to the development application process.

Function of the Local Planning Panels

Local Planning Panels are to be constituted by any Council that is within the Greater Sydney Region and the City of Wollongong before 1 March 2018. The function of these panels will be to carry out the consent authority functions of the Council in relation to development under Part 4 of the Environmental Planning and Assessment Act 1979 in specific circumstances.
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Online Development Applications

The NSW Department of Planning and Environment (the Department) has announced plans to move the lodgement of Development Applications (DAs) online, saving significant time for applicants.

The average time taken to prepare and submit a traditional DA is up to ten (10) days. The Department’s proposed online system has the potential to reduce this time to thirty (30) minutes.

Whilst some Local Councils currently allow online submissions of DAs, the Department proposes a unified system which will be a “one stop shop” for development applications and complying development certificates. In the future the system will connect any type of application to be lodged to any local council within New South Wales.

Features of the Proposed Online DA Lodgement System:

  • standardised requirements for documents submitted with DAs
  • additional contextual guidance provided to applicants
  • function to check whether or not complying development can be undertaken on a property
  • submission and lodgement of complying development certificates online
  • viewing of spatial data of a property online
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