In brief: Our anthem for 2019 describing the state of planning and environmental law in NSW arises from the Chief Judge of the Land and Environment Court's palinode in Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41 in which his Honour stated “the matter does not appear to me now as it appears to have appeared to me then”. 

This comment epitomises a number of significant matters in planning and environmental law over the course of the year, as we have seen:

2019 has also been a year of implementation following the 2018 year of reform in which the largest number of changes since the introduction of the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) were made. 

All of this highlights the legal complexity increasingly impacting consent authorities, enforcement bodies, landowners, and developers.

In this year in review, we have focused on what we consider to be the more significant moments of 2019 from a legal perspective, and forecast what lies ahead in 2020. 

Noteworthy Appellate cases

NSW Commissioner of Police v Rabbits Eat Lettuce Pty Ltd [2019] NSWCA 182 (Rabbits Eat Lettuce)

The case with the most interesting legal citation was clearly Rabbits Eat Lettuce. However, the decision is also of interest because of what the Court of Appeal decided on the scope of an Applicant's right of appeal under by section 8.7 (formerly section 97) of the EP&A Act. 

Succinctly put, the case focused on whether the introduction of section 8.7 of the EP&A Act (introduced on 1 March 2018) broadened the right of appeal formerly held under section 97 (at [38]), to increase the scope of disputes which may be heard as a merit appeal under the Court's Class 1 jurisdiction.

The Court made the following observations at [19]:

s 8.7 does at least the same work as former s 97, but employs different language and a different drafting technique. Rather than three separate rights of appeal from each of the decisions identified in s 97(1), (2) and (3), s 8.7(1) uses broad language to confer a single right of appeal from “the determination of [an] application by the consent authority” and then in subs (2) expands the meaning of “determination of an application by a consent authority” to include decisions corresponding to former s 97(2) and 97(3).

The upshot of this case is that applicants need to be cautious about choosing whether to commence proceedings under Class 1 or Class 4 of the Court's jurisdiction. 

Kuring-gai Council v Bunnings Properties

This case challenged the validity of the Land and Environment Court's "amber light" approach, used in assessing matters in Class 1 of the Court's jurisdiction. 

The Court explained that the "amber light" approach involves the following: 

That language is used in relation to the Class 1 jurisdiction of the Court to describe a preliminary finding that the development application was properly refused by the consent authority (the red light), but, with some changes, could be granted (the green light). The amber light supposedly indicates a possible change from red to green. (At [12])

Preston J made the following three observations regarding the "amber light" approach:

[200] The amber light approach is problematic in many ways. First, it is an artefact, invented and labelled by a Commissioner (not the Commissioner whose decision is the subject of the appeal to this Court). It has no statutory basis in the EPA Act, the LEC Act, any court rule in the Land and Environment Court Rules 2007 or the UCPR, or any Practice Note or Policy of the Court. The fact that a Commissioner of the Court found a particular approach to exercising the functions involved in hearing and disposing of appeals in Class 1 of the Court’s jurisdiction to be helpful in the particular circumstances of each case the Commissioner was deciding, and the Commissioner described and labelled the approach for the benefit of other Commissioners hearing and disposing of other appeals, does not elevate the approach to having any statutory or formal basis.

[201] Secondly, the approach diverts attention from the functions being exercised by the Court in hearing and disposing of an appeal under s 97 now s 8.7 of the EPA Act. The functions are to consider (under s 4.15 of the EPA Act) and to determine (under s 4.16 of the EPA Act) the particular development application that is the subject of the appeal. The Court, exercising the other function of the consent authority under cl 55 of the EPA Regulation, may agree to the applicant amending or varying that development application, in which event the amended development application becomes the relevant development application that is the subject of the appeal.

[207] Thirdly, the constraints on the amber light approach suggested by Commissioners and judges of the Court who have considered the approach risk imposing terms on the Court’s exercise of the functions of determining the development application and hearing and disposing of the appeal that have no basis in or are inconsistent with the statute conferring those functions… Ali v Liverpool City Council, for example, suggested that any amendments to be made under the amber light approach must be “minor and identifiable” (at [120]) and Luxe Manly Pty Ltd v Northern Beaches Council suggested that any amendments under the amber light approach “must not significantly alter” the development that is the subject of the development application (at [35]).

The Court also made a number of comments about the Court's role in determining class 1 appeals:

[155] …the Court can be considered to be standing in the shoes of the consent authority when exercising the statutory function of determining the development application the subject of the appeal. Nevertheless, the shoe metaphor is only a partly correct description of the function of the Court on the appeal. There still remains a distinction between the Court and the consent authority.

[161] …The Court, although exercising functions that might be administrative, is under a duty to act judicially, that is to say, with judicial detachment and fairness: Drake v Minister for Immigration and Ethnic Affairs at 585. As Spigelman CJ said in Port Stephens Council v Sansom at [52]:

“Although a judicial officer exercising a merits review jurisdiction stands in the shoes of the primary decision-maker, s/he cannot behave in the same ways as the administrator. A court is required to manifest a high level of impartiality, independence and consistency in decision-making.”

Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2019] NSWCCA 174

In this case, the Court of Criminal Appeal overturned a 2018 decision of the Land and Environment Court, which had implications for the NSW waste industry that we have discussed in The year in review - A look at the NSW waste industry in 2019.

Local Democracy Matters Incorporated v Infrastructure NSW [2019] NSWCA 65 

Whilst many in the industry observe long delays, this case bucked the trend and had one of the most efficient turnaround times. This case involved judicial review proceedings brought by an incorporated community association against the decision of the state government to grant consent for the demolition of the Sydney Football Stadium - in the lead up to the state election.

The Court urgently heard the matter on an interlocutory basis where an injunction was granted restraining the carrying out of the works under the consent whilst the matter was prepared to be heard by the Court. Ultimately, the Land and Environment Court and then the Court of Appeal, dismissed the claim on all three grounds, namely:

  1. the minimum exhibition period

  2. that the Minister did not form the requisite opinion as to the design excellence of the concept proposal

  3. that the Minister did not comply with the requirements of clause 7 of the State Environmental Planning Policy No. 55 - Remediation of Land

Two separate costs judgments have been published following the matter relevant for those acting for or against associations challenging development consents:

  1. In Local Democracy Matters Incorporated v Infrastructure NSW (No 2) [2019] NSWCA 118, the Court of Appeal ordered the incorporated community association to pay the Minister's costs of the appeal. The Court did not find that there was "something more" than what is required to displace the general rule that costs follow the event - rule 42.1 Uniform Civil Procedure Rules 2005 (NSW). 

  2. In Local Democracy Matters Incorporated v Infrastructure NSW; Waverley Council v Infrastructure NSW (No 4) [2019] NSWLEC 140, the Land and Environment Court made no order as to costs finding the necessary "something more" existed for the cases Pain J determined.

DeBattista v Minister for Planning and Environment [2019] NSWCA 237

The rezoning process in NSW is time consuming and involves various difficulties for proponents, but this decision is of interest for different reasons as the Council sought to downzone the landowner's property. The appeal by the landowner was dismissed in the Land and Environment Court where the Court found that the processes being undertaken by the Council (namely, in determining whether or not to amend its Local Environmental Plan) were of a political and policy nature and not of an administrative nature sufficiently equivalent to curial or quasi-judicial processes to permit intervention on the basis of apprehension of bias.

The Court of Appeal critiqued the NSW rezoning process, but ultimately found the appeal was premature in that the community consultation had not yet been undertaken and the subject planning proposal had not yet been adopted by Council. Consequently, the Court dismissed the appeal.

In its judgment, White JA of the Court of Appeal made a number of salient comments about the independent role of experts, in this case the expert appointed by the Council:

It is generally bad practice for a person in such a position to agree to provide his or her opinion or report to the client in draft. If the opinion provided mistakes the facts, or does not address, or sufficiently address, the questions raised, or if, as in the present case, the professional is asked to address a re-formulated question, then that can and should be addressed by a supplementary opinion and report that transparently discloses the reasons for amendment.

White JA also (rightfully) criticised the retainer of Council's consultant:

the pressure was all the greater because apparently the terms of the professional’s retainer were that it would not be paid if the Council were dissatisfied with the opinion provided. No professional should assent to such a term. No ethical client should demand it.

Noteworthy Land and Environment Court cases

There were over 200 decisions by judges and over 700 decisions by commissioners in the Land and Environment Court. We take a look at three noteworthy cases:

Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7; (2019) 234 LGERA 257 (Gloucester)

The decision in Gloucester clearly attracted an extraordinary amount of media interest due to the Chief Judge's comments about the development being proposed at the "wrong place at the wrong time". The matters involved a Class 1 merit appeal to the NSW Land and Environment Court following the Independent Planning Commission's (IPC) refusal to grant consent to an open cut mine at Rocky Hill, within the Gloucester Valley. 

Preston CJ determined that the application should be refused on more expansive grounds to the IPC, including climate change, including scope 3 emissions. This decision has important ramifications for mining, resources, and other projects in NSW which could potentially be a "material" source of GHG emissions, although these now need to be considered in light of new amendments introduced following the judgement by the NSW Parliament. 

In the last paragraph of the judgment, the Court stated:

In short, an open cut coal mine in this part of the Gloucester valley would be in the wrong place at the wrong time. Wrong place because an open cut coal mine in this scenic and cultural landscape, proximate to many people’s homes and farms, will cause significant planning, amenity, visual and social impacts. Wrong time because the GHG emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions. These dire consequences should be avoided. The Project should be refused.

We have discussed this case further in our February article Climate change, greenhouse gas contributions and the case on the Rocky Hill Coal mine

Northern Beaches Council v Tolucy Pty Ltd [2019] NSWLEC 151

Of the many judgments Duggan J has handed down since being appointed, one judgement stands out due to its correction of widely held views about the time for the lodgement of a section 56A appeal. Reflecting the 2019 anthem mentioned at the start of this article, her Honour confirmed that the time to lodge an appeal under section 56A of the Court Act is 28 days - not 60 days as many had once thought.

The section 56A appeal in question had been filed 33 days after the date of the decision. 

Her Honour nevertheless granted an extension of time, and in doing so placed great significance on the Council’s reliance on the Land and Environment Court website's advice that the appeal period was 60 days, which Her Honour considered entirely reasonable. 

It is now clear that a section 56A appeal must be lodged within 28 days after the decision of the Commissioner that is appealed from.

Alexandria Landfill Pty Ltd v Roads and Maritime Services; Boiling Pty Ltd v Roads and Maritime Services (No 6) [2019] NSWLEC 98 

This case related to the acquisition of two lots in St Peters. It was a highly complex case, and involved several preliminary points. Part of the complexity related to the company structure. 

This judgment created some new Class 3 benchmarks: 

  • The Applicants claimed almost $600 million, the largest compensation claim sought in a compulsory acquisition case in Australian legal history. 

  • Over $50 million in compensation was awarded to the Applicants.

  • The hearing spanned over 10 weeks in total, and involved expert evidence across 11 different areas of expertise. 

EP&A Act - provisions still being implemented 

Low Rise Medium Density Housing Code

This year we saw the Low Rise Medium Density Housing Code be deferred twice more for certain Council areas. While it commenced on 6 July 2018, it only commenced in certain council areas. 

This Code aims to promote more "missing middle" development, such as low-rise dual occupancies, manor houses and terraces - an important theme that runs through many of Minister Stokes' speeches.

In June 2019, this was again deferred to allow for an independent review. This came as the existing one-year deferral in 49 council areas was due to expire on 1 July 2019.

Four more councils were ready for the Code to commence on 1 July 2019, increasing the number of council areas in which the Code operates to 82. The deferral applied for 45 councils until 31 October 2019. 

The result of the independent review was a recommendation that the temporary deferral of the Code for the 45 deferred councils (listed on the Department's website) be extended to 1 July 2020, for those councils to complete their strategic planning, including Local Strategic Planning Statements and Local Housing Strategies, and update their LEPs, and identify and map areas of special local character. 

Part 6 of the EP&A Act

The changes to the EP&A Act in 2018 consolidated building and subdivision certification provisions in Part 6. However, the operational requirements for Part 6 were only made on 30 August 2019 in the Environmental Planning and Assessment Amendment (Building and Subdivision Certification) Regulation 2019. This recently commenced on 1 December 2019.

The new Part 6 provisions include the following changes:

  • The terminology of "interim" and "final" occupation certificates is removed. This does not remove the ability to have staged occupation of buildings. However, new clause 156A means occupation cannot continue indefinitely under a partial occupation certificate. Partial occupation certificates will be the subject of a condition that an occupation certificate be obtained for the whole building within five years of the issue of the partial occupation certificate. Importantly, the new occupation certificate provisions only apply to development consents granted after 1 December 2019. 

  • Design and construction works are now required to be "consistent" with a development consent, rather than "not inconsistent" with a development consent. The implications of this change will no doubt play out over 2020, potentially leading to more modifications applications being lodged.

  • Only councils (and other relevant enforcement authorities) can issue a notice of intention to give an order. Principal certifiers can address non-compliance matters using a written directions notice, and this must be issued within two business days. 

  • Subdivision works can no longer be certified by a construction certificate. A "subdivision works certificate" is now required prior to any subdivision work occurring. This is different to a "subdivision certificate" that authorises registration of a plan of subdivision under the Conveyancing Act. Again, the new subdivision works certificate provisions only applies to development consents granted after 1 December 2019. 

What does 2020 hold?

Many in the industry are still adjusting to the decimalisation of the EP&A Act, and the "evolutionary" (as distinct from revolutionary) reforms of 2018. However, in late 2019 the state government announced plans to "overhaul" planning laws "again", using key phrases such as "simple", "effective", "certainty", "demystifying" and "restoring confidence" to support further reform. One way this reform agenda might be made more successful than the last far-reaching reform attempt in 2013 is by springboarding off the NSW Productivity Commission's review into better regulation. The same might occur with the IPC, which is also being subject to a "health check" by the NSW Productivity Commission. 

Although legal change is one way to introduce improvements to the system, another way is through cultural change. There is no doubt that parts of the NSW public service have culturally changed following, for example, the introduction of Service NSW. We see a clear role for the newly created Department of Customer Service to support legal change by leading change culturally within the agencies involved in the administration and regulation of the state's planning laws.

The focus of this article has been NSW. However, the federal regulation of planning and the environment will also be impacted by the findings of the review into the Commonwealth's Environment Protection Biodiversity Conservation Act 1999, which imposes a parallel regime on developers and landowners in the state. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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