Court of Appeal clar­i­fies whether devel­op­ment stan­dards are juris­dic­tion­al pre­req­ui­sites to the grant of devel­op­ment consent

On 26 April 2023, the New South Wales Court of Appeal hand­ed down its deci­sion in El Khouri v Gemaveld Pty Ltd [2023] NSW­CA 78 which has fur­ther clar­i­fied whether com­pli­ance with a devel­op­ment stan­dard is a juris­dic­tion­al fact that must be sat­is­fied in order to enliv­en the pow­er of the Land and Envi­ron­ment Court to grant devel­op­ment con­sent fol­low­ing a s.34 con­cil­i­a­tion conference.

Back­ground

In May 2020, Gemaveld Pty Ltd (Gemaveld), the reg­is­tered pro­pri­etor of land (Land) locat­ed in Blake­hurst, lodged a devel­op­ment appli­ca­tion (DA) with Georges Riv­er Coun­cil (Coun­cil) seek­ing devel­op­ment con­sent for the demo­li­tion of the exist­ing build­ing and the erec­tion of a new dwelling house, swim­ming pool and land­scap­ing works. In Octo­ber 2020, Coun­cil refused the DA. 

In Octo­ber 2021, Gemaveld com­menced Class 1 pro­ceed­ings in the Land & Envi­ron­ment Court (LEC) appeal­ing the refusal of the DA. 

A sig­nif­i­cant point of con­tention between Gemaveld and Coun­cil was the height of the pro­posed dwelling. The devel­op­ment stan­dard for height that applied to the Land was 9 metres (Height Con­trol) as spec­i­fied in the (since repealed) Kog­a­rah Local Envi­ron­men­tal Plan 2012 (Kog­a­rah LEP). The Land was unique in that it sloped steeply and uneven­ly down from street lev­el towards the Georges Riv­er, mak­ing the approved height dif­fi­cult to iden­ti­fy. Ulti­mate­ly, Gemaveld pro­vid­ed plans which indi­cat­ed that the pro­posed dwelling com­plied with the Height Control. 

On this basis, Gemaveld and the Coun­cil reached an agree­ment at a Sec­tion 34 con­cil­i­a­tion con­fer­ence and the Com­mis­sion­er of the LEC grant­ed devel­op­ment con­sent with­out the mat­ter pro­ceed­ing to a hearing.

In July 2022, the neigh­bour­ing landown­ers (Neigh­bours) com­menced pro­ceed­ings seek­ing judi­cial review of the LEC deci­sion. The Neigh­bours claimed that the grant of con­sent was not a deci­sion that the Com­mis­sion­er of the LEC could have made in the prop­er exer­cise of its func­tions — with­in the mean­ing of s 34(3) of the Land and Envi­ron­ment Court Act 1979 (NSW) (Court Act) — as the Height Con­trol had not been com­plied with and no appli­ca­tion had been made to vary the Height Control. 

After a two-day hear­ing in the Supreme Court it was held that the pro­posed devel­op­ment exceed­ed the Height Con­trol, but this had not been evi­dent on the plans put before the Com­mis­sion­er of the LEC. The pro­ceed­ings were dis­missed. The Neigh­bours con­se­quent­ly appealed that deci­sion to the NSW Court of Appeal. 

Court of Appeal

The ques­tion before the Court of Appeal was whether com­pli­ance with the Height Con­trol in the Kog­a­rah LEP was a pre-con­di­tion (or ​‘juris­dic­tion­al fact’) nec­es­sary to enliv­en the Court’s pow­er under s 34 of the Court Act to grant con­sent to the DA. 

In con­sid­er­ing the issue, the Court of Appeal referred to the deci­sion in Ross v Lane [2022] NSW­CA 235, in which it was held that it is a mat­ter for the con­sent author­i­ty to deter­mine whether a plan­ning instru­ment is engaged, and that the Court can­not inter­fere in that deter­mi­na­tion when it depends on the for­ma­tion of a state of sat­is­fac­tion or opinion. 

The Court of Appeal held that com­pli­ance with the Height Con­trol was not a juris­dic­tion­al pre­req­ui­site to the pow­er to grant devel­op­ment con­sent. The Height Con­trol was instead a manda­to­ry con­sid­er­a­tion that the Com­mis­sion­er of the LEC was required to have regard to in mak­ing a deter­mi­na­tion that the s.34 agree­ment between the par­ties was one that the LEC could have made in the prop­er exer­cise of its functions. 

Impli­ca­tions

When grant­i­ng devel­op­ment con­sent fol­low­ing agree­ment at a s.34 con­cil­i­a­tion con­fer­ence, a com­mis­sion­er of the LEC must have regard to the rel­e­vant devel­op­ment stan­dards in plan­ning instru­ments to deter­mine whether an agree­ment between the par­ties is one that the Court could have made, but com­pli­ance with those stan­dards is not a pre­con­di­tion to the grant of consent.