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Development Control Orders: Validity Matters More Than Ever

A recent decision by the NSW Land and Environment Court in Kingfisher Properties Pty Ltd v Northern Beaches Council [2025] NSWLEC 39 (Kingfisher Case) is a timely reminder that development control orders (DCO) must adhere to statutory requirements.

In this case, the Court reduced a $100,000 penalty to just $9,000 after finding that the DCO issued went beyond the powers permitted under the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act).

Background

Kingfisher Properties Pty Ltd (Kingfisher) was a company that built a carport without obtaining the necessary development consent for the construction. Northern Beaches Council (Council) issued a DCO requiring Kingfisher to remove the carport. Initially, this was done via a Compliance Order under item 11, part 1 of Schedule 5 of the EP&A Act. However, a Compliance Order can only be used when a planning approval exists but has not been complied with. Given there was no planning approval in this instance this was not the appropriate order to issue. [...]  READ MORE →

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A concept development application, what is it?

What is a Concept Development Application (‘Concept DA’)?

A Concept DA is a type of development application that sets out a proposal at a conceptual level. The Concept DA outlines a proposal that will be the subject of one or more subsequent development applications and may relate to the entire site or just a part of it.

A Concept DA must include a description of the proposed future development. It may also include  more detailed plans for the first stage of the development. If the Concept DA is approved, it permits certain development works to commence without the need for further consent. This is in accordance with s 4.22(1) and (2) of the Environmental Planning and Assessment Act 1979 (‘EPA Act’). The developer can then commence work on the initial stage, while submitting a more detailed development application for the remaining stages, consistent with the approved Concept DA. [...]  READ MORE →

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Limits to the power to amend undetermined development applications during Class 1 appeal proceedings before the Land and Environment Court (LEC)

Summary: The LEC has recently found that the proposed amendments to a development application on appeal were outside the power to amend, and in accordance with s 4.19 of the Environmental Planning and Assessment Act (EPA Act), and the substantive use as sought in the original development application submitted to Council is limited to the use as sought in the Class 1 Application.

Facts: In the matter of Reid v Woollahra Municipal Council [2023] NSWLEC 1611, the applicants sought leave to amend their development application (DA) to rely on amended plans and documents. The respondent, Woollahra Municipal Council (Council) opposed the application for leave to amend. The substantive proceedings were brought pursuant to ss 8.7 and 8.11 of the EPA Act against Council’s deemed refusal of a DA, which originally sought consent for demolition of an existing attached dual occupancy and construction of a new attached dual occupancy. The amended plans and documents sought a change to the erection and use of the development from an attached dual occupancy to a single dwelling. [...]  READ MORE →

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Application Modification

The recent NSW Court of Appeal case of AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces [2021] NSWCA 112 raises concerns as to the power to modify an existing development consent. The bench included Meagher, Leeming JJA and Chief Judge of the Land and Environment Court Preston CJ.

The case involved an application to modify an underground coal mine in the Hunter Valley. The Court found that the Land and Environment Court judge has erred in joining the objectors and ordered that the joining of the objectors be set aside. [...]  READ MORE →

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New Practice Note Issued in NSW on Voluntary Planning Agreements

On 12 February 2021, the Planning Secretary issued a new Planning Agreement Practice Note (VPA Practice Note) under clause 25B(2) of the Environmental Planning and Assessment Regulations 2000 (EPA Regulations), replacing the Development Contributions – Practice Note – Planning Agreements (Former VPA Practice Note) issued on 19 July 2005. This clause provides guidance on the making, administration and negotiation of VPAs under section 7.4 of the Environmental Planning and Assessment Act (EPA Act). On the same day, the Environmental Planning and Assessment Amendment (Development Contributions) Regulations 2021 (Amendment Regulations) made numerous amendments to the EPA Regulations. [...]  READ MORE →

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Proposed Amendments to the Environmental Planning & Assessment Act

On 9 January 2017 the NSW Government announced a number of proposed amendments to the Environmental Planning & Assessment Act 1979 (NSW) (EP&A Act). The Minister for Planning, Ben Stokes stated that the proposed amendments are aimed to “build greater confidence in the planning system by enhancing community participation, strengthening upfront strategic planning and delivering greater probity and integrity in decision-making”. To begin the process, Minister Stokes released a public consultation draft of the Environmental Planning and Assessment Amendment Bill 2017 (the draft Bill) on 9 January 2017. The draft Bill will be exhibited until 10 March 2017 for public consultation and Council can make a submission in response to it any time before that date. [...]  READ MORE →