Con­struc­tion relat­ed impacts should be con­sid­ered in staged devel­op­ment applications

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.