06 August 2019
The NSW Land and Environment Court decision in Saffioti v Kiama Municipal Council will be of interest to applicants seeking development consent, including for changes to existing use rights.
In Saffioti v Kiama Municipal Council  NSWLEC 1426 the NSW Land and Environment Court (Court) considered an appeal against a Commissioner’s decision regarding an application by Ms Saffioti (Applicant) to erect a new dwelling on her land and use the existing dwelling on that land as an art studio, in reliance on existing use rights.
The decision is interesting because the Court held that Commissioners hearing Class 1 planning appeals are not required to give an 'amber light' to applicants seeking development consent, by alerting them to issues with their applications and giving them an opportunity to modify applications to make them acceptable. The Court found that this approach has no statutory basis.
The Court also clarified the requirement to comply with certain environmental planning instruments, and the relationship between those instruments and existing use ‘incorporated provisions’ in the Environmental Planning and Assessment Regulation 2000 (NSW).
The Applicant’s land was zoned E2 Environmental Conservation under the Kiama Local Environmental Plan 2011 (LEP). The zoning prohibited the erection and use of a building for dwelling purposes. However, Kiama Municipal Council (Council) and the Applicant had agreed that the use of the existing dwelling was an existing use under section 4.65 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act).
The Applicant lodged a development application (DA) with Council, seeking consent to erect and use the new dwelling relying on the existing use rights. The Council did not determine the DA, and the Applicant appealed the Council’s deemed refusal to the Court.
The Commissioner hearing the appeal refused the DA and dismissed the appeal on the basis that the proposed development:
The Applicant appealed against the Commissioner’s findings to a Judge of the Court on questions of law. The appeal was heard by the Chief Judge of the Court and failed on all grounds, two of which are discussed below.
The Applicant alleged that the Commissioner had denied her procedural fairness by:
The 'amber light' approach has previously been adopted by some Commissioners in the Court when hearing and disposing of planning appeals.
In particular, the Applicant argued that the Commissioner had failed to provide her with the opportunity to:
The Chief Judge rejected these arguments, finding that:
This is because applicants for development consent have the onus of proposing, in their development applications, the alternative solutions that achieve the objects of the applicable DCP standard. The consent authority can then evaluate whether the proposed alternative solutions are reasonable and achieve the objects of those standards for the purpose of section 4.15(3A)(b).
In this case, the Commissioner had considered the only alternative solution provided by the Applicant (being the proposed development) consistent with the requirements of section 4.15(3A)(b), and found it did not achieve the objects of the standards in the DCP.
Under section 4.66(1) of the EPA Act, nothing in the EPA Act or an environmental planning instrument (EPI) prevents the continuance of an existing use.
However, section 4.67 recognises that:
The incorporated provisions are found in Part 5 of the EPA Regulation. In particular:
Clause 6.4(4) of the LEP provides that development consent must not be granted to development unless the consent authority is satisfied of the matters in clause 6.4(4)(a) – (c). These relate to the maintenance of biodiversity, appropriate design, siting and the management of adverse environmental impacts on biodiversity.
The Commissioner found that clause 6.4(4) of the LEP did not derogate from the incorporated provisions.
The Applicant submitted that clause 6.4(4) did in fact do so, as it detracted from the rights otherwise enjoyed and protected by an existing use right – including the entitlement to enlarge, expand or intensify that use in accordance with clause 42 of the EPA Regulation.
The Court rejected this. It held that the correct test is whether clause 6.4(4) of the LEP derogates from the entitlement to make, and have the consent authority consider and determine, a development application seeking consent to enlarge, expand or intensify an existing use.
The Court found that clause 6.4(4) establishes factual preconditions about which the consent authority must be satisfied in order to enliven the power to grant consent. However, this did not derogate from the Applicant’s entitlement to make a development application seeking development consent for the purpose of clause 42 of the EPA Regulation.
The Court noted that this finding was consistent with other decisions of the Court, which have found that provisions of a local environmental plan that fixed development standards do not derogate from the incorporated provisions.
Such provisions will not derogate from the existing use ‘incorporated provisions’ in the Environmental Planning and Assessment Regulation 2000 (NSW). They will only do so (and have no effect for the purpose of section 4.67(3) of the EPA Act) if they derogate from the entitlement to make the relevant development application.
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