Chief Justice Preston of the Land and Environment Court has recently clarified the operation of section 8.12 of the Environmental Planning and Assessment Act 1979 (“EP&A Act”) in the case of Stannards Marine Pty Ltd v North Sydney Council [2021] NSWLEC 66 (“Stannards”).
The Stannards case concerned a development application proposing the installation and use of a new floating dry dock for the maintenance and repair of marine vessels. The proposed development was of a kind declared to be designated development by the Environmental Planning and Assessment Regulation 2000.
The Applicant appealed against the refusal of the development application by the North Sydney Local Planning Panel.
The Council had provided notice of the appeal to persons who had made a submission by way of objection pursuant to section 8.12(1) of the EP&A Act, and three of those persons had successfully made applications to be heard at the hearing of the appeal under section 8.12(3) of the Act (with a number of other objectors having since made applications to be heard).
The Applicant sought orders that the objectors were not entitled to be heard at the hearing of the appeal on the basis that they were not persons entitled to be given notice of an appeal under section 8.12(1) of the EP&A Act.
Section 8.12 relevantly provides as follows:
“8.12 Notice of appeals to be given and right to be heard
- (1) The following are entitled to be given notice of an appeal made under this Division—
- (a) an objector, in the case of an appeal by an applicant concerning an application for development consent in respect of which the objector has a right of appeal under this Division,
…
- (2) Any such notice of appeal is to be given by the relevant consent authority.
- (3) Anyone who is given any such notice of appeal is, on application to the Court within 28 days after the notice is given, entitled to be heard at the hearing of the appeal if not already a party to the proceedings.
- (4) In this section, a reference to an application for development consent includes an application to modify a development consent.”
Section 8.8 of the EP&A provides a right of appeal to a person who made a submission by way of objection during the public exhibition of a development application for designated development and who is dissatisfied by the determination of a consent authority to grant consent.
The Applicant relied on the recent decision of Justice Pepper in the case of Barr Property and Planning Pty Ltd v Cessnock City Council [2021] NSWLEC 20 (“Barr Property”). In that case, it was held that objectors have no right of notice of an appeal or right to be heard under sections 8.12(1)(a) and (3) of the EP&A Act for an appeal by an applicant in respect of the refusal of designated development because such an appeal was not one “in respect of which the objector has a right of appeal under this Division” (being limited to determinations to grant consent under section 8.8).
Chief Justice Preston held that the Applicant’s construction of section 8.12 of the EP&A Act and the decision in Barr Property were “plainly wrong”, and confirmed that all objectors were entitled to be heard on the basis that their applications had been made in time.
While objectors may not have been able to exercise their right of appeal in circumstances where the Panel had refused the development application, his Honour held that the objectors still nonetheless had a right of appeal under section 8.8(2) of the EP&A Act. The application for development consent was therefore still one “in respect of which the objector has a right of appeal under this Division”.
Following the clarification provided in the Stannards case, it is important that councils acting in their capacity as consent authority ensure that notice is given to objectors of appeals in respect of designated development.
A copy of the decision of Chief Justice Preston can be viewed here.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
