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31 July 2017 Construction related impacts should be considered in staged development applications

By Cecilia Rose, Partnr

Construction related impacts should be considered in staged development applications: Bay Simmer Investments Pty Ltd v State of New South Wales [2017] NSWCA 135

Why is Bay Simmer important?

Bay Simmer clarifies the interpretation of section 83B of the Environmental Planning and Assessment Act 1979.  To be a staged development application, the application must propose at least two detailed subsequent development applications for the site.  Section 83B is not satisfied by a concept proposal and a single further detailed development application for the whole of the site.  The Court of Appeal also determined that construction related impacts of a proposal are a relevant consideration for assessment in a staged development application, the impacts of construction activities should not be delayed for assessment at another time.  Councils and other consent authorities may have adopted this approach in the assessment of development applications and should be aware of this decision.

The Decision

This Court of Appeal decision related to judicial review proceedings in the Land and Environment Court, where an adjoining business to an application for the "Walsh Bay Precinct" alleged the Minister's delegate failed to consider construction related impacts of the development proposal.  During the appeal to the Court of Appeal, the issue of whether the application could properly be characterised as a "staged development application" arose. 
 
The Court of Appeal reviewed the words of section 83B and determined that the language must mean that a concept proposal lodged under section 83B should be followed by at least two detailed development applications thereafter [26] – [27].  The proposal lodged on behalf of the State government indicated the Stage 1 concept proposal "will be followed by one or more detailed SSDAs for the construction of the public domain, building alterations and specific uses." (per Basten JA at [22]).  The language did not indicate at least two further detailed applications would be made.
 
The Minister's delegate indicated in the reasons for granting consent that consideration of the construction impacts could be deferred for assessment to future development applications [47].  The State argued this approach was permissible because the approval was only for a "concept" [48].  The Court of Appeal identified that it was possible for the Minister's delegate to decline to deal with the application until the applicant had identified the proposed stages of construction, however that did not occur [58].  Basten JA observed that there is no statutory basis to conclude that a staged development application is not dealing with the "development of a site" [65].  A staged development application is an application to carry out development.  On this basis there is no reason to exclude construction related impacts from consideration in the assessment of a staged development application. 
 
Find the case here.

What's happened since the decision – new amendments to section 83B proposed

The NSW Government has released a draft Bill for concept proposals, in response to the decision in Simmer Bay.  The draft Bill can be found here.  The draft bill proposes to clarify that a staged DA may include a concept approval and only one subsequent development application, and what needs to be assessed for a concept proposal.  The Bill also proposes to rename 'staged development application' as 'concept development applications'.  The draft amendment was on exhibition until 24 July 2017.

Cecilia Rose, Partner  |  Phone: +61 2 9233 5544  |  Email: cxr@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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