EP&A Act – Special procedures for staged development – Amendments in response to Bay Simmer case

What has happened?

On Friday, 14 August 2017, the Environmental Planning and Assessment Act 1979 (EP&A Act) was amended by the Environmental Planning and Assessment Amendment (Staged Development Applications) Act 2017 (Staged Development Act).

The amendments made by the Staged Development Act are a response to the decision of the Court of Appeal in Bay Simmer Investments Pty Ltd v State of New South Wales [2017] NSWCA 135 (Bay Simmer).

In Bay Simmer, the Court of Appeal declared invalid a development consent granted for the "Walsh Bay Arts Precinct". The development's "planning approval pathway" contemplated a "staged development application" under Division 2A of Part 4 of the EP&A Act comprising:

  1. a concept proposal for the development of the site; and
  2. a single detailed development application.

The Court of Appeal ruled that this approach was inconsistent with the language of Division 2A which required that there be at least two detailed proposals for separate parts of the site.

What is the effect of the amendments?

The amendments made by the Staged Development Act:

  1. make it clear that the "special procedures" relate to "concept proposals" rather than "staged development applications"
  2. confirm that a concept proposal may be followed by a single development application for the whole development to which the concept approval relates
  3. provides that a consent authority, when considering a concept approval application, only needs to consider the likely effects of the proposal and not the effects of development subject to subsequent applications
  4. apply to pending "staged development applications" and validate previous applications (except for the Bay Simmer application)

Implications

The planning approval pathway considered in Bay Simmer (ie a concept proposal followed by a single, detailed development application) would not be considered an unusual approach and has been used for other major developments in NSW.

These amendments clarify the status of previous development consents granted based on this approach and confirm that a similar approach can be adopted (with caution) in the future.

Further information

For further information on these amendments and their potential implications for your development please contact Marcus Steele, Director, on (02) 8005-1411 or marcus.steele@steelelaw.com.au.