Author(s): Dr. Ian Ellis-Jones & Pierre Le Bas
This is no academic issue. Often, when an environmental planning instrument or other statutory instrument comes into force and repeals or amends some earlier instrument dealing with the same or similar subject-matter, the new instrument contains a savings and transitional provision stating that the provisions of the former instrument shall continue to apply (and the new instrument does not apply) to a development application lodged but ‘not finally determined’ immediately before the commencement of the new instrument.
A development application is ‘determined’ by the consent authority granting consent to the application (either unconditionally or subject to conditions) or refusing consent to the application: see s 4.16(1), Environmental Planning and Assessment Act 1979 (‘EPAA’).
At the outset, it is important to note that the EPAA makes a distinction, in numerous sections of the Act, between a ‘determination’ and a ‘final determination’. In the interests of brevity, we will not refer to specific sections of the EPAA, but it is clear to us that a development application cannot be ‘finally determined’’ more than once.
Such a construction is supported by the decision of Lloyd J in Blackmore Design Group Pty Ltd v North Sydney Council  NSWLEC 279. In that case, which was a merit-based Class 1 appeal to the Land and Environment Court, development consent was sought for the demolition of an existing building and the construction of an apartment building. At the time the DA was lodged, the land was subject to North Sydney Local Environmental Plan 1989 (the ‘1989 LEP) and the proposed development was permissible with consent under that instrument. Subsequently, the 1989 LEP was repealed and North Sydney Local Environmental Plan 2001 (the ‘2001 LEP’) commenced. The proposed development was prohibited under the under the 2001 LEP. However, the 2001 LEP contained a savings clause (cl 5(3)) which provided that where a development application had been lodged but had not been finally determined before the commencement of the 2001 LEP, the environmental planning instruments repealed or amended by the 2001 LEP continued to apply as if the 2001 LEP had been exhibited but not commenced.
The council gave four reasons for its refusal of the development application. At the hearing of the appeal, however, the council relied upon only one issue, namely, whether the application should be approved having regard to the fact that the development the subject of the application was prohibited under the Residential G zoning of the 2001 LEP, in particular, ‘as if [the 2001 LEP] had been exhibited but had not commenced’, and whether the proper approach was to consider the 2001 LEP in the form as gazetted as being both certain and imminent, thereby warranting the allocation of determining weight to the plan.
The first question was the weight to be given to the 2001 LEP. Lloyd J stated that that question was governed by cl 5(3) of that instrument: ‘the environmental planning instrument repealed or amended by this plan shall apply as if this plan had been exhibited but had not commenced’. Although the 2001 LEP had not been made, at the time of lodgement of the development application, it was both certain and imminent.
Now, insofar as the meaning of the words ‘final determination’ is concerned, Lloyd J applied the savings clause (cl 5(3), 2001 LEP) to the consideration and determination of the application now before the Court. In that regard, his Honour was in no doubt that the ‘not finally determined’ clause (cl 5(3)) applied at the stage of determination by the Court as consent authority on appeal. As we see it, that means, by necessary implication, that a DA is ‘finally determined’ when either:
- a determination that has been made in respect of the application is not, or is no longer, subject to any form of administrative review or merit-based appeal; or
- a determination that has been made in respect of the application was subject to some form of administrative review or merit-based appeal, but the period within which such a review or an appeal could be instituted has ended without a review or an appeal having been instituted as prescribed.
This is consistent with a number of provisions of the EPA Act: see eg s 6.15(1)(f)(ii) [‘if an appeal has been made … the appeal has been finally determined’]; s 8.13(5)(a) [‘a court … that finally determines an appeal on a question of law which confirms the validity of, or results in the granting of, the development consent’]; s 8.13(5)(b) [‘such a final determination made by another court’]; s 8.14(2) [‘The decision of the Court on an appeal under this Division is … taken to be the final decision of that consent authority and is to be given effect to accordingly’].
There is also a considerable body of case law on the meaning of the word ‘final’ where used in privative clauses (eg ‘A determination of the council is final …’). Those cases make it unambiguously clear that the word ‘final’ means without that there is no longer any opportunity to re-canvass or re-open the merits of the application by way of statutory appeal: see eg R v Medical Appeal Tribunal; Ex parte Gilmore  1 QB 574; R v Commissioner of Police (NT); Ex parte Holroyd (1965) 7 FLR 8; Anisminic Ltd v Foreign Compensation Commission  2 AC 147 (HL).
‘Not finally determined’ savings clauses can take various forms. Here is one from State Environmental Planning Policy (Coastal Management) 2018 (‘SEPP CM’). Clause 21(1) of SEPP CM provides as follows:
The former planning provisions continue to apply (and this Policy does not apply) to a development application lodged, but not finally determined [emphasis added], immediately before the commencement of this Policy in relation to land to which this Policy applies.
We are aware that at least one large council in metropolitan northern Sydney takes the view, in relation to clause 21(1) of SEPP CM, that a DA is ‘finally determined’ at the time of initial determination by the Council as consent authority. Now, to follow the council’s logic, that would mean that a particular DA can be ‘finally determined’ more than once. That is to say, if the council be right, an application is finally determined when, say, it is refused by the council or a local planning panel, is again finally determined when, say, an application for review of the original determination is dealt with under Division 8.2 of the EPAA, and is again finally determined following the outcome of an appeal in the Land and Environment Court. With respect, such an interpretation of the provision is not only strained but almost risible.
Further, in extrapolating upon the council’s approach, if an application is finally determined at the so-called council level, then the status of the application must be different when it is again dealt with by the council in a review under Div 8.2 (if such a review is sought), and again by the Court in a merit-based Class 1 appeal with the Court standing in the shoes of the council.
In our view, a development application is not ‘finally determined’ until the time limit for an appeal on the merits has expired, without an appeal having being lodged, or in circumstances when an appeal is lodged, until the final determination by the Court. In that regard, the word ‘finally’ in the words ‘not finally determined’ must have some work to do in the context of the savings provision. Our interpretation is consistent with the way the UK statutory planning system operates, wherein an application for planning permission is not ‘finally disposed of’ under Article 40(13)(a) of the General Development Procedure Order 2015, following the application being granted or refused, until the time limit for appeal has expired, without an appeal. There are other very similar provisions under Canadian zoning law and also Californian state planning law.
Disclaimer: This post does not constitute legal advice and is not to be relied upon for any purposes. Persons seeking legal advice on this or any other matter should seek and rely upon their own independent legal advice.