The making of a development application is not as simple as uploading some documents onto the NSW Planning Portal. A recent decision of the Court of Appeal in Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264 has confirmed that there are essential conditions that must be satisfied before a development application is made. 

Failure to satisfy those conditions may mean that the development application is incomplete and not made.

Background

On 26 November 2021, the State Environmental Planning Policy (Housing) 2021 (2021 SEPP) commenced, repealing and replacing the State Environmental Planning Policy (Affordable Rental Housing) 2009 (2009 SEPP).

2021 SEPP included a savings provision which provided that the SEPP did not apply to any development applications “made, but not yet determined, on or before the commencement date”, being 26 November 2021.

The applicant commenced Class 1 proceedings in the Land and Environment Court appealing against the Council’s deemed refusal of a development application seeking consent for the demolition of existing structures and construction of a mixed-use development. 

In those proceedings, the applicant asked the Court to determine, as a separate issue ahead of any of the merit issues, whether the development application was “made” on or before 26 November 2021 for the purpose of the savings provision under 2021 SEPP. 

Primary judge’s decision

Justice Moore (as he then was) of the Land and Environment Court found that the development application was made after 26 November 2021 and therefore was not protected by the savings provisions because the manner and form requirements of clause 50(1) of the Environmental Planning and Assessment Regulation 2000 (2000 Regulation) for making a development application were not complied with prior to that date. Namely:

• The application did not include an A4 plan of the building; and
• Payment of the development application fee had not occurred on or before 26 November 2021.  

The applicant argued that the Council delayed in notifying the fee payable for the development application beyond the 14 days after lodgement of the application, as required under s256 of the 2000 Regulation. 

Because the primary judge found the application had not been “made” prior to 26 November 2021, there was no delay by the Council in notifying the fee payable. The Council notified the fee payable a day after it received the necessary material to complete the development application. 

On this question of notification of fees payable, Justice Moore observed that if a Council delays notifying an applicant of the relevant development application fee as it is required to do under s256 of the 2000 Regulation within 14 days of lodgement of the development application, then the applicant can apply to the Land and Environment Court for an order, in Class 4 proceedings pursuant to s9.45 of the Environmental Planning & Assessment Act 1979 (EP&A Act), to compel the Council to determine and notify the applicant of the fees payable: see [74] of the first instance decision in Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2022] NSWLEC 150. 

The applicant challenged the judge’s decision in the Court of Appeal. 

Court of Appeal’s findings 

The Court of Appeal dismissed the appeal and agreed with the primary judge that the development application had not been “made” before the commencement of the 2021 SEPP on 26 November 2021. 

Importantly, the Court of Appeal found that:

a. The inclusion of all relevant information and documents required by the EP&A Act and the 2000 Regulation, and the payment of the development application fee are essential conditions for the making of a development application. 

The applicant did not provide the Council with all necessary documents required to satisfy clause 50(1) of the 2000 Regulation until 1 December 2021, well after the commencement of the 2021 SEPP. 

b. Until the development application fee is paid, a development application is “ineffective and incomplete” (not invalid or void – see Preston CJ at [101] to [103]). 

The applicant did not pay the development application fee until 9 December 2021.

c. The development application fee cannot be calculated until the Council has full and accurate information on the nature of the proposed development. 

The Council notified the applicant of the fee payable on 2 December 2021, being the day after the Council was satisfied that it had received all necessary information and documents relating to the development application. The Council gave notification of the fee within 14 days of lodgement as required by section 256 of the 2000 Regulation and so it did not delay notifying the applicant of the development application fee.

However, there still appears to be some uncertainty about when a development application is in fact “made”. Acting Justice Basten (with whom Gleeson JA agreed) found that the development application was made on 13 December 2021, being the date that the NSW Planning Portal recorded the date of notification of lodgement. However, Preston CJ found that the development application was made earlier, on 9 December 2021, being the date the applicant paid the development application fee.

In separate reasons, Preston CJ agreed with the primary judge that if there is significant delay by a Council in notifying an applicant of the development application fees (greater than 14 days after lodgement as prescribed by s256 of the 2000 Regulation) then an applicant can apply to the Court for an order to compel the Council to determine and notify the applicant of the fees payable.

Key takeaways

• The date a development application is “made” is important because it may determine which statutory planning scheme applies and will also determine when an applicant can appeal to the Court against the Council’s deemed or actual refusal of a development application.
• It is vital that a development application includes all necessary documents and information required by the EP&A Act and the 2000 Regulation when it is lodged with the NSW Planning Portal so that there is compliance with the legislative requirements and the Council can determine the fee payable. 
• A development application is not “made” until there is payment of the development application fee.
• A Council should notify an applicant of the development application fees within 14 days of lodgement of the development application. If the Council significantly delays notification of the fee payable, then it is legally possible for the applicant to commence class 4 proceedings in the Land and Environment Court compelling the Council to determine and notify the applicant of the fees payable.