What has happened?
In a short judgment delivered on 17 August 2017 (Platform Project Services Pty Ltd v Minister for Planning  NSWLEC 102), the NSW Land and Environment Court considered the following question:
Where it is proposed to modify a Part 3A Concept approval to exclude currently included land, it is necessary to obtain consent from the owner of the excluded land?
This question had arisen in the context of a proposed redevelopment of the Nine Network campus located at Willoughby. The redevelopment was subject to a Part 3A concept approval which included part of a Council-owned road.
The developer, Planning Project Services Pty Ltd, submitted an application to modify the Part 3A concept approval to exclude the Council-owned road. The Department of Planning and Environment refused to determine the application on the basis of its view that landowner's consent from Council was required.
The developer commenced judicial review proceedings seeking a declaration that such consent was not required. The two respondents, the Minister for Planning and the Council, filed submitting appearances in the proceedings.
Findings by the Court
Put simply, the Court held that the answer to the above question is "No". That is, consent from the Council as owner of the excluded land is not required.
The case turned on the proper construction of the introductory words to Clause 8F of the Environmental Planning and Assessment Regulation 2000 (emphasis added):
8F Owner’s consent or notification
(1) The consent of the owner of land on which a project is to be carried out is required for a project application or modification application ...
The Court held that Clause 8F:
- is prospective and forward-looking as is made clear by the words “land on which a project is to be carried out”. Landowner consent is required when a project application or modification application proposes development on their land but not otherwise.
- the above construction gives effect to the "empowering provision in the EP&A Act" - Section 75Z(b) - which explains the scope and purpose of a regulation such as Clause 8F(1) and refers to “projects [which] are proposed to be carried out”.
This case removes any doubt (to the extent there was any) that, where it is proposed to modify a Part 3A project approval to exclude land, it is not necessary to obtain consent from the owner of the excluded land.
For further information on this judgment and its potential implications for your development please contact Marcus Steele, Director, on (02) 8005-1411 or firstname.lastname@example.org.