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Key takeaways – Development Applications
- All requested documents need to be submitted and fees paid before Council will consider a development application to be “made”.
- Without these elements being complied with, the application may have different planning rules applied to it.
A recent decision in the case of Hinkler Ave 1 Pty Limited v Sutherland Shire Council [2023] NSWCA 264 has provided clarity on when it is considered that a development application has been made to Council.
The issue
The applicant in this case uploaded to the NSW planning portal the development application and various ancillary documents. However, these documents did not include an A4 plan, and the required fees were not paid until a later date.
Courts will look closely at your application
The judge then held that the development application was not “made” for the purpose of the savings provision in the 2021 State Environmental Planning Policy (Housing) 2021 (NSW).
The judge indicated that the manner and form requirements as outlined in clause 50(1) of the Environmental Planning and Assessment Regulation 2000 (NSW) for making a development application were not complied with, meaning that it was to be governed by a different SEPP.
This outcome means that any developers seeking to rely on savings provisions under different environmental planning instructions should ensure that the development application process is satisfied as quickly as possible and that requested information and documents are given and fees paid.
Developers should be prepared
This decision also indicates that it is important for developers to be aware of the overall date that a development application is made or lodged under the Environmental Planning and Assessment Act 1979 (“EP&A Act”) as it will dictate what legislation and environmental planning instructions will apply and therefore the impact it will have on the application itself.
The case confirmed that it is important for any development application to follow and comply with the EP&A Act and any associated regulations. It has highlighted the importance of developers needing to collate all information prior to lodging an application as it will limit the possible impacts of different legislative pieces being found to apply.
Next steps
As a priority, developers should undertake a review of their development lodgement practices and ensure that all requirements can be satisfied at the time of lodgement.
Do you have questions about this case and its implications for your latest project? PDC Law offers expertise to assist clients navigate the risks at each stage of their development application.
Contact: Lorri Field
For more information, visit pdclaw.au or the NSW Government Planning website
Madyson is a Lawyer who worked for PDC Law until 2025 in various areas such as private lending, strata, disputes and leasing.
