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News & Events
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Essential Guide to Clause 4.6 Requests
Introduction
Development standards play an important role in ensuring that new developments complement the character of the local area, avoid harm to the environment and are beneficial to the public. [1] Development standards can be found in most environmental planning instruments. Within a local environmental plan (LEP) development standards commonly set standards for a wide range of matters such as minimum lot size requirements, maximum building heights, bulk, scale and density, as well as the provision of access, landscaping and parking.
However, development standards ‘are not ends in themselves’ but a means of achieving the planning and environmental objectives of the Environmental Planning and Assessment Act 1997 (the Act) and the LEPs that contain them.[2] As such, strict compliance with a development standard can sometimes be neither necessary nor reasonable.[3]
For this reason, all ‘standard instrument’ LEPs include the ability to vary development standards under clause 4.6. Clause 4.6 allows an application to be made to the consent authority to vary a development standard when the preconditions set out in that clause have been met. In this way, clause 4.6 allows flexibility in the application of development standards where this will achieve a positive planning outcome.
Court decisions on clause 4.6 requests have emphasised the need to ensure that all of the various requirements of the clause are satisfied in each case. This essential guide provides a simplified outline of the statutory requirements which apply to the making and assessment of clause 4.6 applications, including a brief review of some decisions of the Land and Environment Court which illustrate the approach which needs to be followed in interpreting and applying clause 4.6.
Legal requirements of a clause 4.6 variation request
Each of the following elements must be met before development consent can be granted for development that contravenes a development standard:
- Clause 4.6(3) provides that the consent authority must have considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating that:
- Clause 4.6(4) provides that the consent authority must be satisfied that:
- the applicant’s written request has adequately addressed the matters required to be demonstrated by cl. 4.6(3);
- the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out,
- the concurrence of the Planning Secretary has been obtained[6].
The various elements which must be satisfied under cl.4.6 are jurisdictional.[7] As such, if a proposal does not meet all of these requirements, development consent cannot be granted by the consent authority. We have explained each of these requirements further below.
Matters the cl. 4.6 request must address
First, development consent may only be granted for development that contravenes a development standard if the consent authority is satisfied that the written request has adequately addressed two factors –
- that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and
- that there are sufficient environmental planning grounds to justify contravening the development standard.
The language of cl.4.6, in requiring that an application ‘adequately address’ these two matters, means that the consent authority needs to be satisfied that those matters have, in fact, been demonstrated in the request documentation. It is not sufficient for the request merely to seek to demonstrate the matters, the consent authority needs to be directly satisfied that the written request has in fact demonstrated both that compliance is unreasonable or unnecessary in the circumstances of the case and also that there are sufficient environmental planning grounds to justify the contravention. [8]
Unreasonable or Unnecessary
The Court has identified 5 common methods, sometimes referred to as the ‘Wehbe tests’, an applicant may use to establish that compliance with a development standard is unreasonable or unnecessary in the circumstances of the case:
- by showing that the objectives of the development standard are achieved notwithstanding noncompliance with the development standard;[9]
- by establishing that the underlying objective or purpose is not relevant to the development, such that compliance is unnecessary;[10]
- by establishing that the underlying purpose is defeated or thwarted if compliance is required, such that compliance becomes unreasonable;[11]
- by illustrating that the Council itself has granted development consent that departs from the standard, and arguing from this that the development standard has been ‘virtually abandoned or destroyed,’ rendering it unnecessary and unreasonable;[12]
- by establishing that the zoning area of the proposed development was ‘unreasonable or inappropriate’ such that the development standard which is appropriate to that zoning is no longer reasonable or necessary for the particular area. Preston CJ has explained that the focus of this reason is that the zoning of the land in question is unreasonable or inappropriate, rather than the standard being inappropriate in that zone.
An applicant may rely on more than one of these methods to justify non-compliance with a development standard in the circumstances of a particular case[13] and there may be other ways of demonstrating that compliance with a development standard is unreasonable or unnecessary in particular circumstances.
Sufficient Environmental Planning Grounds
A developer’s application must also demonstrate that the contravention is justified on ‘sufficient environmental planning grounds’. Such grounds include matters that ‘relate to (the) subject matter, scope and purpose of the Act, including the objects in s 1.3.’[14] This leaves developers with a wide range of grounds on which they can rely to justify a 4.6 request, including, for example, that the variation will promote good design and amenity, will allow for the orderly and economic development of land or that it will promote ecologically sustainable development by integrating relevant economic, environmental and social considerations.
Is the Consent authority satisfied that the development is in the public interest?
If the consent authority is satisfied that the applicant’s written application has adequately addressed the above two factors, then it must go on to consider – and be satisfied – that the development would also be in the public interest because it is consistent with:
- the objectives of particular development standard; and
- the development objectives of the zone in which the development is proposed.[15]
As such, the public interest test is not simply whether the development is in the public interest in the broad sense. Rather, the test is whether the development would be in the public interest “because” it is consistent with the objectives of both the development standard and the relevant zone. If the consent authority forms the view that the proposed development is not consistent with the objectives of the standard or the zone, or both, it will not meet the public interest test.[16]
The term ‘consistency’ in this context has been interpreted to be synonymous with the term ‘compatible’ and ‘capable of existing together in harmony’. The requirement for development to be ‘consistent’ with the relevant objectives is a less onerous test than actually achieving the particular objectives[17].
In determining whether it is satisfied that a proposed development is in the public interest, the consent authority, including the Court on appeal, is not limited to considering the cl.4.6 request. It is able can take into account the whole of the development application and other relevant evidence before it.[18]
Concurrence
Development consent must also not be granted for development that contravenes a development standard unless the concurrence of the Planning Secretary has been obtained.
The concurrence of the Planning Secretary can be assumed for most applications under clause 4.6,[19] but this is subject to the following two exceptions:[20]
- where the developer is seeking an exemption to the minimum lot size and the area being developed is less than 90% of the minimum lot size and the land is within zone RU1, RU2, RU3, RU4, RU6, R5, E2, E3, E4 or an equivalent land use zone and the development is local or regionally significant development; or
- if the application is being determined by a delegate of council (rather than the council or its independent hearing and assessment panel) and the development will:
- contravene a numerical standard by more than 10%, or
- the variation is to a non-numerical standard.
If, because of either of these circumstances, concurrence cannot be assumed then the consent authority will need to seek (and obtain) concurrence from the Planning Secretary before it can grant consent to the application. The Planning Secretary is required to consider the following when deciding whether to grant concurrence:
- if the contravention ‘raises any matter of significance for the State or regional environmental planning;’
- the benefit to the public of maintaining the development standard; and
- any other matters deemed relevant.
A council must refuse to grant consent to an application for which the Planning Secretary’s concurrence is required but has not been provided. If the concurrence of the Planning Secretary is sought but not given within the time allowed for doing so, development consent may be granted without that concurrence[21].
In a Class 1 appeal to the Land and Environment Court, the Court may determine the appeal whether or not the concurrence of the Planning Secretary has been obtained. Where concurrence has been obtained but that concurrence is subject to conditions, the Court can also vary or revoke those conditions. However, the Court must still consider the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard.[22]
Are there times a cl. 4.6 cannot be requested?
Clause 4.6 applications can only be made in respect of “development standards” and not to prohibitions contained in a LEP. The EP&A Act contains an expansive definition of “development standards”[23].
There are also some development standards which cannot be varied pursuant to cl.4.6. These are:
- The subdivision of land in certain zones if the subdivision will create two or more lots that are less than the minimum area specified for such a lot, or if it results in (at least) one lot that is less than 90% of the minimum area required by development standards;[24]
- If the development standard is for complying development[25];
- If the development standard is one that arises in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated[26]; or
- If it will contravene a control in cl.5.4 relation to miscellaneous permissible uses.[27]
Local environment plans also often contain an additional list of local standards which cannot be varied under cl. 4.6 (in cl.4.6(8)).
Conclusion
Development standards provide important limitations to ensure that development occurs in an environmentally responsible manner and achieves good planning outcomes. However, cl.4.6 recognises that these outcomes can still be achieved without strict compliance with these standards in some circumstances.
This guide explains the requirements of cl.4.6 and the guidance provided by the Land and Environment Court to assist local council’s to correctly assess these requests and determine when a flexible approach can be justified.
The content contained in this Essential Guide is, of course, general commentary only. It is not legal advice. Readers should contact us and receive our specific advice on the particular situation that concerns them.
Please note that the law detailed in this Essential Guide is correct at 12 March 2021.
Our series of NSW Local Government Guides are comprehensive yet simple to understand guides on how to deal with certain legislation and problems that NSW Local Government and Councils often face.
[1] Environmental Planning and Assessment Act 1979, s 1.4.
[2] Wehbe v Pittwater Council (2007) 156 LGERA 446 at [43].
[3] Ibid.
[4] See definition of ‘development standard’ in cl 4.6(3)(a).
[5] Ibid cl 4.6(3)(b)
[6] Ibid cl 4.6(4)(b).
[7] RebelMH Neutral Bay Pty Limited v North Sydney Council [2018] NSWLEC 191 at [42] – [43].
[8] RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [51].
[9] Wehbe v Pittwater Council [2007] NSWLEC 827 at [42] (‘Wehbe’).
[10] Ibid [45].
[11] Ibid [46].
[12] Ibid [47].
[13] Liberty Investments Pty Ltd v Blacktown City Council [2009] NSWLEC 7 at [29].
[14] Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 at [23].
[15] Ibid [26]; Local Environmental Plan cl 4.6(4)(a)(ii).
[16] Initial Action Pty Ltd v Woollahra Municipal Council at [27].
[17] Kingsland Developments Australia Pty Ltd v City of Parramatta Council [2018] NSWLEC 1241 at [20].
[18] SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112 at [33].
[19] Planning Circular PS 20-002 Variations to Development Standards.
[20] Ibid.
[21] EP&A Act, s.4.13(11). The “time allowed” is 40 days or 21 days after the receipt of the last of any submissions received following the public notification of the application: EP&A Reg, cl. 62.
[22] Initial Action Pty Ltd v Woollahra Municipal Council at [29].
[23] EP&A Act, s. 1.4.
[24] Standard Instrument—Principal Local Environmental Plan cl 4.6(6).
[25] Ibid cl.4.6(8)(a).
[26] Ibid cl.4.6(8)(b).
[27] Ibid cl.4.6(8)(b).
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Doyles Guide recognises BAL Lawyers Employment Law and Investigations group in 2021
BAL Lawyers is delighted to announce that our Employment Law & Investigations group has been recognised as among the best employment law firms in Canberra.
The latest Doyles rankings, released in February 2021, feature the team and its members in four categories, representing their work for both employee and employer-focused practice areas.
Both practice areas have been recognised, in addition to individuals’ recognition:
- BAL Lawyers is the Leading employee and trade-union focused Employment Law Firm in Canberra;
- BAL Lawyers is listed as a Recommended employer-focused Employment Law Firm in Canberra;
- Gabrielle Sullivan and John Wilson are each named as the two Leading employee and trade union focused Employment Lawyers in Canberra
- Gabrielle Sullivan and John Wilson are each named among Recommended employer-focused Employment lawyers in Canberra.
“We are delighted that both our preeminent work on behalf of employees, and employers, has been formally recognised” John Wilson, a Legal Director in the team said today.
“We are also pleased that our employer focused monthly HR Breakfast Club discussion forum has become somewhat of an institution, bringing together HR Managers from across Canberra to look closely at the issues that people managers face on a daily basis,” says Gabrielle Sullivan, a regular speaker at the events.
Gabrielle and John, along with Associate Rebecca Richardson and Lawyer Andrew Chakrabarty, assist their clients in what is often either a highly charged and disruptive time in their lives. The team’s unrivalled expertise is complemented by their solution-centred approach, which puts their clients’ interests at the heart of the matter.
Doyle’s Guide is an independent body that publishes rankings predominantly based on peer review and client feedback.
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(L-R) Andrew Chakrabarty, Gabrielle Sullivan, John Wilson and Rebecca Richardson
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Is a formal application form required to amend a construction certificate?
In a recent decision, the NSW Court of Appeal has clarified that, while an application to modify the plans accompanying a construction certificate must be in writing, that requirement can be satisfied by lodging plans which themselves set out the changes proposed. A separate application form is not required unless the certifying authority so requires.
Omaya Investments Pty Ltd v Dean Street Holdings Pty Ltd [2021] NSWCA 2 was an appeal from a decision of the NSW Land and Environment Court refusing to make declarations and restraining orders in relation to a residential apartment development being erected by Dean Street Holdings near Burwood railway station. The proceedings were brought by Omaya Investments, which owned land on an adjoining site.
The case concerned whether excavation work associated with the proposed apartment building was being carried out in accordance with a construction certificate.
Facts
Development consent had been granted for the apartment development in March 2013 and a construction certificate was issued in March 2018. In March 2019, amended engineering plans were approved by the principal certifying authority which proposed an excavation that was more extensive than had been originally approved. The amended plans were not accompanied by a formal application to amend the construction certificate or the plans which accompanied it.
Issue on appeal
The appellants primary argument was that the deeper excavation at the site was in breach of the development consent as the CC issued in March 2018 had not been validly modified to incorporate the amended set of plans. This, it was argued, was because there had been no written application to the principal certifying authority to do so.
Decision
The Court acknowledged the requirement in cl 139(1)(c) of the Regulation that an application to modify a CC must be delivered by hand, sent by post or transmitted electronically presupposes that the application will be in documentary form. However, the Court observed that neither the Act nor the Regulation required the application to be in any particular form unless the certifying authority so requires: cl 139(1)(b) and cl 141.
The Court pointed out that there was no evidence that the principal certifying authority had required a proposed variation of plans to be in a particular form and on that basis upheld the trial judge’s decision that the amended plans were sufficient themselves to comprise a written document that set out the terms of what the developer was seeking. The Court held that while an application to modify the plans accompanying the certificate was required to be in writing, that requirement was satisfied by the submission of amended plans which clearly set out the changes proposed.
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Essential Guide to Voluntary Planning Agreements
The latest edition of our Essential Guide to Local Government Law will assist local councils to understand the benefits and the requirements which apply to the making of a voluntary planning agreement under the Environmental Planning and Assessment Act 1979 (EPA Act).
What is a Voluntary Planning Agreement?
A voluntary planning agreement (VPA) is a written agreement between a planning authority (such as a local council) and a developer who has sought a change to an environmental planning instrument (EPI) or who has made or proposes to make a development application (or who is associated with someone who has) in which the developer agrees to make contributions to the authority for use for a public purpose.
Although it is described as an agreement, a VPA usually takes the form of a deed, because the developer is making contributions but is not usually receiving any consideration in return.
A high degree of transparency is required throughout the VPA process to preserve the integrity of the development assessment process. The developer wants the consent authority to consider its offer to enter into a VPA when the Council evaluates a proposal to amend an EPI or considers the merits of a development application.[1] It is therefore important that the public can see what additional benefits the developer is offering to provide, to reduce the risk of bias or of irrelevant matters being taken into account. Planning authorities should not place disproportionate weight on a VPA when considering the planning merits of a development application or a proposal to amend an EPI[2].
Councils should be careful to ensure that, where the circumstances described above exist, they follow the prescribed process for the making of VPAs and do not enter into agreements which have a similar effect outside that regime. Considering such agreements in the development assessment process may result in a development consent being found to be invalid.[3]
What are the benefits of a Voluntary Planning Agreement?
A developer will often offer to make contributions as part of the process of seeking a change to an EPI or preparing a development application as a way to offset potential impacts of development on the broader community.
A broad range of contributions can be obtained by a planning authority under a VPA. Common forms of contributions which are provided under VPAs include (but are not limited to):
- the dedication of land free of cost, which can include land outside the scope of the land to which the relevant application relates.
- the payment of one or more monetary contributions. These can be in addition to development contributions and can exceed the development contribution cap amount. Provision can also be made in a VPA for monetary contributions to be reviewed and adjusted according to cost revisions rather than indexation.
- the carrying out of works, such as the construction or upgrade of roads, stormwater infrastructure, playgrounds and community facilities, environmental works etc.
VPAs therefore provide a mechanism under which a willing developer can make contributions of a type or value which the planning authority could not require the developer to provide by other means. There does not need to be a strong connection between the proposed development and a monetary contribution or the works to be undertaken under a VPA, although the existence of some nexus between the two makes it less likely that the VPA might be seen as an attempt by the developer to ‘buy’ a development consent.[4]
What information must be included in a Voluntary Planning Agreement?
The EPA Act requires that the following information be included in a VPA:[5]
- a description of the land to which the agreement applies,
- a description of:
- the change to the environmental planning instrument to which the agreement applies, or
- the development to which the agreement applies,
- the nature and extent of the provision to be made by the developer, the time or times by which the provision is to be made and the manner in which the provision is to be made,
- in the case of development, whether the agreement excludes (wholly or in part) or does not exclude the application of section 7.11, 7.12 or 7.24 to the development,
- if the agreement does not exclude the application of section 7.11 to the development, whether benefits under the agreement are or are not to be taken into consideration in determining a development contribution under section 7.11,
- a mechanism for the resolution of disputes under the agreement,
- the enforcement of the agreement by a suitable means, such as the provision of a bond or guarantee, in the event of a breach of the agreement by the developer.
A planning agreement cannot exclude the application of section 7.11 or 7.12 of the EPA Act unless the consent authority for the development or the Minister is a party to the agreement. A VPA cannot exclude the application of section 7.24 of the EPA Act without the approval of the Minister.[6]
What is the process for entry into a Voluntary Planning Agreement?
The process for entry into a VPA is constrained by the processes set out in the EPA Act and the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) and is generally as follows:
- a developer makes a written offer to provide contributions to a public authority in connection with a proposal to amend an EPI or a development application. The planning authority to whom the offer is directed does not have to be the same entity as the consent authority for the proposed development,
- one party will prepare a draft VPA[7] and ‘explanatory note’, which summarises the key aspects of the VPA.[8] The terms of the draft VPA are then negotiated by the parties,
- the draft VPA and explanatory note are placed on public exhibition for not less than 28 days. Where possible, exhibition should occur contemporaneously with the giving of notice of the relevant EPI or development application to which it relates,[9]
- it is implicit that any submissions which are made in the exhibition period are considered by the planning authority before it decides whether or not to enter into the VPA. Where material changes need to be made to a VPA after the exhibition period has ended it will be necessary to re-exhibit the amended draft VPA before the parties enter into it,
- the VPA must then be signed by the parties[10] (although it may not commence until some further event has taken place, such as the grant of development consent),
- the VPA will (often) be registered on the title of the land to which it relates, and
- any amendments made by the parties wish to the VPA will need to be placed on public exhibition and any submissions considered prior to any such changes taking effect.
How are Voluntary Planning Agreements enforced?
A VPA must include a suitable mechanism for its enforcement. The “suitability” of a proposed enforcement mechanism should be assessed by reference to whether the means of enforcement is likely to eliminate or reduce, to a commercially acceptable level, the risk that the obligation created by the VPA will not be performed and that the planning authority or the community will not receive the intended benefits.[11]
Common enforcement mechanisms include bonds and guarantees. A bond provides financial security by giving the planning authority access to money which it can use to fulfil a payment obligation or to complete works if a developer is unable or unwilling to do so. A deed of guarantee operates by requiring another entity to guarantee that it will fulfil the developer ’s obligations under the VPA if it is unable or unwilling to do so. Alternative types of security could include registering a caveat on the title to the land or a combination of security options such as providing a bond and registering a caveat or providing a bond and deed of guarantee from a related or parent company. An assessment as to what enforcement mechanism is ‘suitable’ should be made on a case by case basis.
In addition to calling on the enforcement provisions included in the VPA, a planning authority can enforce compliance with a VPA by:
- requiring contributions to be made as a condition precedent to the issue of a subdivision certificate under s.6.15(1)(d) of the EPA Act, or
- following the dispute resolution mechanisms in the VPA, or
- seeking an order for compliance under s.9.45 of the EPA Act by commencing civil enforcement proceedings in the Land and Environment Court of NSW.
Public Voluntary Planning Agreement resources
There are a range of public resources on VPAs which Council’s may find useful, including:
- The Department of Infrastructure’s Planning and Natural Resources Development Contributions Practice Note, issued 19 July 2005.
- The Department of Planning and Environment ‘Draft Practice Note on Planning Agreements’ November 2016
- The Department of Planning, Industry and Environment, ‘Planning agreements practice note’: Exhibition Draft April 2020
This guide provides general advice only. Please contact Alice Menyhart, Director in our Planning, Environment and Local Government Team for specific VPA advice or for assistance in drafting, reviewing, amending or enforcing a VPA.
The law in this Guide is current as at 13 January 2021.
[1] EPA Act, s.4.15(1)(a)(iii).
[2] See additional guidance on the fundamental principles which apply to the consideration of planning agreements in the Department of Infrastructure Planning and Natural Resources Development Contributions Practice Note, issued 19 July 2005. DPIE published an exhibition draft Planning agreements practice note in April 2020, although it has not yet been made.
[3] Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140.
[4] See Tesco Stores v Secretary of State for the Environment & Ors. [1995] 1 WLR 759.
[5] EPA Act, s.7.4(3).
[6] Or a development corporation designated by the Minister to give approvals under subsection 7.3(5A).
[7] A template VPA can be found in Attachment A to the Department of Infrastructure Planning and Natural Resources Development Contributions Practice Note, issued 19 July 2005.
[8] Cl. 25E of the EPA Regulation sets out what must be included in the explanatory note.
[9] Cl 25D EPA Regulation
[10] A VPA must be signed by the parties to the agreement: cl.25B(1)(b) EPA Regulation
[11] Huntlee Pty Ltd v Sweetwater Action Group Inc (2011) 185 LGERA 429, 459 [132].
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Dog on- and off-leash areas and the EPA Act
A recent decision of the NSW Land and Environment Court demonstrates that NSW councils need to carefully consider the provisions of both Parts 4 and 5 of the Environmental Planning and Assessment Act 1979 (the EPA Act) when making decisions about the creation of on- and off-leash areas for dogs under the Companion Animals Act 1998.
In Palm Beach Protection Group Incorporated v Northern Beaches Council [2020] NSWLEC 156 Preston CJ has provided a detailed and informative analysis of the way the two Acts interact. This article has been prepared to provide a brief summary of the decision, with a focus on the application of the EPA Act in relation to the establishment of dog on and off-leash areas in public reserves.
Background
The former Pittwater Council had given an order pursuant to the Companion Animals Act that all dogs were prohibited on “all beaches” in its area. This position was revisited in 2019 when the Northern Beaches Council twice resolved to allow the public to use Station Beach with their dogs. The first decision concerned the use of part of the beach as an off-leash area on a trial basis for 12 months. The other decision, made some months later, concerned the use of part of the beach as a dog on-leash area.
Station Beach, on the Pittwater side of Palm Beach, and the adjacent Governor Phillip Park, comprise a reserve for public recreation and have been so for nearly a century. The local council, now Northern Beaches Council, had the care, control and management of the reserve.
The Palm Beach Protection Group Inc. challenged the Council’s decisions on two grounds:
- The Council breached s 4.2 or s 4.3 of the EPA Act when authorising the carrying out of development, being the use of the beach by the public with their dogs, as the use was either prohibited development or development permitted only with development consent, which had not been obtained (the unlawful development ground); and
- The use of the beach authorised by the Council’s decisions was an ‘activity’ within the meaning of Part 5 of the Act, that each of the Council’s decisions was an approval of that activity, and the Council, as the determining authority, had not considered the environmental impact of the activity before granting that approval (the inadequate EIA ground).
The Group also contended that the Council was required by s 5.7 of the EPA Act to consider an environmental impact statement prior to granting the approval as the activity was ‘likely to significantly affect the environment’.
The unlawful development ground
The crux of the Group’s complaint on these grounds was that the use of the reserve by people with their dogs was a separate and distinct use of the beach to that by people without dogs, and was a use that was either prohibited, or that required consent under the applicable environmental planning instruments.
The Council contended, amongst other things, that:
- the use of land authorised by its decisions was use for the purpose of a “recreation area”, a land-use which was permitted with consent under the relevant land use zones, but which could be carried out without consent on a public reserve under the care and control of the Council under cl. 65(3) of the Infrastructure SEPP; and
- alternatively, development consent was not required because the use of the land was a “continuing use” authorised by s 4.68(1) of the EPA Act.
The Court found that the use of Station Breach enabled by each Council decision was properly characterised as being development for the purpose of a recreation area.[1] His Honour observed that the detailed activities carried out before may be different to those carried out after the Council’s decisions, in that people used the beach and adjacent waters without their dogs before, but with their dogs after, the Council’s decisions, but that this did not constitute a change in the purpose of the use. The characterisation of the purpose of the use is to be done at the appropriate level of generality, sufficient to cover the individual activities, but not in terms of the detailed activities.[2]
The Court went on to find that development consent was not required because the use of the reserve for the purpose of a recreation area had lawfully commenced almost a century earlier, long before the introduction of any requirement to obtain development consent for that use under relevant planning instruments. In so doing, the Court held that the Council’s decision did not involve an enlargement, expansion or intensification of the use of the land for the purpose of recreation area, despite the Group adducing evidence of an increased number of dogs on the reserve following the Council’s decision. The Court reasoned that the use of the reserve, both before and after the Council’s decisions, was still for the purpose of public recreation and that, while the nature of the use may have changed, what mattered was whether the number of people using the beach and adjacent waters had increased or the area of the beach and adjacent waters being used had increased. The Court found that this was not established by the evidence.
The inadequate EIA ground
The Group also contended that each of the Council’s decisions constituted an approval of an activity, being the use of land, under Part 5 of the EPA Act. In doing so, the Group argued that Part 5 applied so as to impose a twofold duty on the Council. First, the Council had a duty under s.5.5 to “examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of the activity”. Secondly, where the activity was likely to significantly affect the environment, before granting any approval, it had a duty under s.5.7 to examine and consider an environmental impact statement in respect of the activity. The Group presented expert evidence to show that the use of Station Beach by dogs was likely to significantly affect the environment because of its likely impact on the threatened seagrass population Posidonia australis and the threatened seahorse species Hippocampus whitei (White’s Seahorse).
The Council contested that its decisions constituted “an approval” of an “activity” under Part 5, submitting that the decisions merely involved exercises of power under the Companion Animals Act, being a revocation or variation of the former Pittwater Council’s order under that Act to prohibit dogs on all beaches. In the alternative, the Council contended that it had complied with Part 5 because:
- it had carried out an environmental impact assessment of the dog off-leash area trial, in the form of a “Review of Environmental Factors” (REF);
- it had considered the REF to the fullest extent possible, evident by its adoption of certain recommended mitigation measures;
- it had concluded that the dog off-leash area trial was not an activity likely to significantly affect the environment, so that an EIS was not required; and
- there was no additional requirement to consider the impacts on the environment in relation to the second decision concerning the dog on-leash area, as the Council’s assessment in relation to the off-leash area was adequate and its determination that that activity was not likely to significantly affect the environment was reasonable.
The Court, however, held that Part 5 of the EPA Act did apply to the Council’s decisions.[3] It found that the Council had breached ss.5.5 and 5.7 in its consideration and approval of the activity of allowing dogs to use the reserve on-leash and had breached s.5.7 by granting approval to the use of the reserve by dogs off-leash without having obtained, examined and considered an EIS in respect of the activity.
The Court gave extensive reasons. Its key findings were that:
- with respect to the on-leash area, the Council had not considered the environmental impacts of the activity. In this regard the Court observed that the report to the Council meeting approving the activity did not undertake any examination of any matters affecting or likely to affect the environment by reason of the activity. Although the report referred to the earlier approval of the off-leash activity, the Court found those references did not import the assessment of the environmental impact of that activity;[4]
- the duty under s 5.5(1) to consider the environmental impact of an activity applies to each and every activity that a determining authority considers. An environmental assessment under 5.5(1) of one activity does not suffice to discharge the duty under s 5.5(1) to consider the environmental impact of another activity.[5] The activities or conducting a dog off-leash trial and allowing dogs on-leash were different.[6] The Council could therefore not rely on the REF for the dog off-leash trial to discharge its obligation to consider the environmental impact of the approval of the dog on-leash area; and
- in respect of the breach of s.5.7:
- the finding in the REF that the off-leash trial was not likely to have a significant effect on the environment was not adopted by the Council, so that the Council did not in fact find that the dog off-leash area trial was not likely to significantly affect the environment;[7]
- the finding in the REF that the proposed trial was unlikely to have any significant or long-term negative environment impact was conditional upon all of the mitigation measures outlined with the REF being implemented. The Council had not implemented all of those measures;[8]
- as a matter of jurisdictional fact, the activity of allowing both dogs on and off-leash at Station Beach approved by the Council was likely to significantly affect the environment by reason of a range of direct and indirect impacts on the environmentally sensitive seagrasses and White’s seahorse; and[9]
- consequently, the Council had granted an approval to the activities without having obtained and considered an EIS in respect of that activity when it was required to have done so.[10]
Implications
There are several important lessons to be learned from this case. First and foremost, a council making decisions with respect to dog on- and off-leash areas under the Companion Animals Act should approach its task mindful that those decisions are subject to the EPA Act. While it is likely that in most instances dog on- and off-leash areas will be within a public reserve for public recreation purposes for which continuing lawful use protections under the EPA apply, a council will nevertheless need to consider the environmental impacts of creating or varying dog on or off-leash areas of the activity under Part 5.
The Court’s decision will also be of broader interest for determining authorities under Part 5. First, the decision emphasised the need to consider the environmental impacts for each activity being contemplated. Although a determining authority might reasonably conclude that a particular activity has smaller environmental impact than a similar activity previously contemplated and assessed, that fact alone does not discharge the duty of a determining authority to properly consider the environmental impact of each activity under s.5.5(1). Secondly, in order to properly discharge its duty under s.5.7(1), a determining authority should make an affirmative decision about whether the proposed activity will, or is likely to, have a significant effect on the environment. Finally, where a REF concludes that an activity is unlikely to have a significant impact but only if carried out in accordance with specified mitigation measures or controls, a determining authority must ensure that those measures or controls are implemented to avoid the risk of its approval being set aside.
If you have specific areas of concern relating to dog on- and off-leash areas in your local government area, please contact Andrew Brickhill or Alan Bradbury for further information and advice.
[1] At [131]
[2] At [134] citing Royal Agricultural Society (NSW) v Sydney City Council at 310; Chamwell Pty Ltd v Strathfield Council at [36].
[3] At [253].
[4] At [263]
[5] At [268]
[6] At [269]
[7] At [282]
[8] At [283 – 285]
[9] At [282, 345]
[10] At [322, 345]
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Real Estate Alert: Homebuilder Grant Extended
The Federal Government has announced an extension of the Homebuilder Grant, which includes:
- extending the eligibility period from 1 January 2021 to 31 March 2021;
- reducing the grant to $15,000.00 for those applicants who sign contracts between 1 January 2021 and 31 March 2021;
- extending the construction commencement window by 6 months (to the end of September 2021); and
- increasing the price cap for new builds in New South Wales (now $950,000.00).
To be eligible for the Homebuilder Grant you must:
- be a natural person (e.g. not a corporation);
- be an Australian citizen aged 18 or over; and
- earn less than $125,000.00 as an individual, or less than $200,000.00 as a couple.
Construction must commence within six (6) months of the signing the contract.
For further information please contact the Real Estate Team at BAL Lawyers.
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