In the Zone - July 2025

Welcome to the July edition of In the Zone! 

There have been some particularly instructive decisions from the Land and Environment Court recently, including a decision providing guidance on when or if consent orders are to be preferred over a section 34 agreement, what it means to give a development control order to a “proper” person under s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) and the importance of validly imposing conditions requiring the payment of a monetary contribution (which could otherwise be severed from a development consent).

Along with a summary of the recent amendments to the EPA Act, we also consider the Land and Environment Court’s decision that a modification application cannot extend a development consent that has lapsed and a decision of the High Court which considered the two limbs to the common law test for standing (which grants rights to a private individual to enforce a public duty).

If you have any questions about any of the information below, please get in touch with us.

Land and Environment Court

Chief Judge finds Commissioner erred in his interpretation of zone objective and expresses preference for s 34 agreements rather than consent orders

Billyard Ave Developments Pty Limited v The Council of the City of Sydney [2025] NSWLEC 22 by Preston CJ (20 March 2025). Read the full decision here.

In our last edition of In the Zone (available here) we wrote about the decision of a Commissioner in Billyard Avenue Developments Pty Limited v The Council of the City of Sydney [2024] NSWLEC 1825 to refuse a development application on the grounds the development was not consistent with the first objective of the R1 General Residential zone, to ‘provide for the housing needs of the community’.  
 
Apart from the Commissioner’s use of Coldplay and Rolling Stones lyrics to assist in the interpretation of the zone objective, the decision was also of interest because the appeal was dismissed despite the parties having agreed to consent orders, which provided for the granting of the development consent. 

The applicant appealed against the Commissioner’s decision on two grounds:

• the proper construction of a standard objective of the R1 General Residential zone, and
• procedural fairness – where there are no contested issues between the parties.

Misconstruing the zone objectives

On appeal, Preston CJ held that the Commissioner’s interpretation of the zone objective contained various errors, including that the Commissioner had:

• undertaken an incorrect process of statutory interpretation by relying on the evidence of the parties’ experts and lay evidence of the objectors rather than the established principles of statutory construction (at [33] – [35])
• erred by interpreting individual words in the objective in isolation from the rest of the words, without ever construing the sentence of the objective as a whole (at [58]), and
• erroneously interpreting the purpose of the zone objective, noting the R1 zone is the most general residential zone permitting a wider range of residential development than the other three residential zones (at [65] – [72]).

Procedural fairness

The applicant also alleged that the Commissioner denied it procedural fairness by raising and deciding issues (including the social impacts and negative environmental effects) that were not in dispute between the parties and without providing the applicant with an opportunity to be heard on those matters. Preston CJ accepted the applicant’s submissions (at [29]), noting at [82]:

If the Commissioner wished to decide that matter contrary to the parties’ agreed position, he needed to notify them and give them an opportunity to argue that the Commissioner ought not to decide the matter in that way.

Preston CJ found it was appropriate to make an exclusionary remitter order on the basis of the fundamental interrelationship between the errors on questions of law and the Commissioner’s merit determination of the development application, and the reasonable apprehension that the Commissioner had pre-determined the same issues of fact that would need to be determined on the remitter (at [103]).  The effect of this finding was that the appeal would be listed before a different Commissioner for determination.

Interestingly, Preston CJ made several remarks (at [5]-[17]) expressing a clear preference for a section 34 agreement over consent orders in circumstances where the parties have resolved the issues in dispute and reached agreement that development consent should be granted.  His Honour was critical of a Council, in circumstances where a development application was deemed refused, of proceeding by way of consent orders (thereby still necessitating a hearing by the Court) when the DA could either be approved by the Council itself or by way of a section 34 agreement.  At [107] his Honour noted:

The Court cannot order the Council to pursue either of these courses, which would implement the parties’ agreement reflected in the consent orders signed by each party’s solicitor. But if the Council chooses not to take either of these courses, and puts Billyard and the Court to the cost of conducting a further hearing of the appeal against the Council’s deemed refusal of the development application, in circumstances where there still remains no contested issue that development consent should be refused, the Council’s conduct can be taken into account in deciding whether it is fair and reasonable to make a costs order against the Council under r 3.7(2) of the Land and Environment Court Rules 2007 (NSW). Nevertheless, the approach the Council might take on the remitter of the matter is a question for another day.

Key takeaway

The proceedings are an important reminder that a section 34 agreement (as opposed to consent orders) may be the most effective way to resolve a Class 1 appeal where the parties have reached agreement and intend for the Court to dispose of the proceedings in accordance with that agreement.   

Court holds landowner has no right to appeal development control order given to lessee

Freemo Enterprises Pty Ltd v Hawkesbury City Council [2025] NSWLEC 36 by Beasley J (8 April 2025). Read the full decision here.

Hawkesbury City Council (Council) issued a Development Control Order (DCO) on Good Az Gold Pty Ltd (Good Az Gold).

The DCO was a “Stop Use Order” and a “Restore Works Order” within items 1 and 10 of Part 1 of Schedule 5 of the EPA Act. The DCO relevantly stated:

The Order is to be given to the Proper Person, Good Az Gold Pty Limited, 18-30 Macquarie Street, Windsor, NSW 2756.

The premises to which the DCO related was 18 Macquarie Street, Windsor, NSW 2765 (the Site). Freemo Enterprises Pty Ltd (Freemo) was the owner of the Site. Good Az Gold was a lessee at the time the DCO was given, but had since vacated the Site. Freemo filed a Class 1 application appealing the DCO under s 8.18 of the EPA Act.

By notice of motion, Council sought an order that the Class 1 proceedings be dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005.

Decision

The Court held that Freemo was not a person who had been “given” a DCO within the meaning of s 8.18 of the EPA Act. The person “given” the relevant DCO was Good Az Gold. Nothing in Freemo’s submissions addressed this fundamental point, other than to concede it.

Apart from the DCO expressly stating that the order is to be “given” to Good Az Gold, clause 4 of Part 4 of Schedule 5 of the EPA Act provides as follows:

4 Giving and taking effect of orders
(1) A development control order is given by serving a copy of the order on the person to whom it is addressed and takes effect from the time of service or a later time specified in the order.

The entity that the DCO was addressed to was Good Az Gold, not Freemo. Freemo, therefore, had no right of appeal under s 8.18 of the EPA Act, and the proceedings were dismissed as sought by the Notice of Motion. The Applicant was also ordered to pay Council’s costs of the proceedings and the Motion.

Affordable housing contributions conditions determined to be severable from development consent

Hanave Pty Ltd v Waverley Council [2025] NSWLEC 19 by Pritchard J (13 March 2025). Read the full decision here.

Background

The Applicants commenced judicial review proceedings seeking declarations that conditions imposed on two development consents requiring payment of monetary contributions for affordable housing under the relevant affordable housing SEPPs in force at the time (Conditions) were invalid in circumstances where they were not authorised to be imposed under the Waverley Local Environmental Plan 2012 (LEP).

The legislative scheme for the imposition of the affordable housing contributions as applied to the development applications was complex and involved several amending instruments and transitional provisions. Ultimately, Pritchard J determined that the conditions were not validly imposed as they were not authorised to be imposed under the LEP, which was a requirement under the relevant SEPP, and that they could not otherwise be validly imposed under the EPA Act.

A consequential issue that arose for determination was whether the Conditions (if invalid) could be severed from the consent.

Council submitted that the Conditions were a fundamental element of the consents in terms of how the impact of the proposed development on affordable rental housing would be ameliorated. In doing so, they relied on the decision in Greek Australian Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130 where it was held that a condition requiring payment of a monetary contribution could not be severed from the consent because it was fundamental to the decision to grant consent as it went to the root of the consideration of the consent authority.

The Applicants submitted that the consent would not operate any differently without the Conditions and accordingly the invalidity of the Conditions could not affect the validity of the consents (relying on the decision in King v Bathurst Regional Council (2006) 150 LGERA 362). Further, it did not matter whether the consent authority would have come to a different decision

Pritchard J found that the Conditions were severable from the consent:

[109] However, the question which arises in relation to severability is not whether condition 10 was fundamental to the granting of the rear DA consent, but whether the severance of condition 10 will result in the balance of the consent operating differently. That the consent authority may have come to a different decision if it had known that condition 10 was not enforceable does not mean that the rear DA consent will operate differently on the applicants or produce a different result: King v Bathurst at [93] (Jagot J).
...
[113] Here by contrast, notwithstanding evidence and submissions in relation to the opinion of the first respondent concerning the significance of the imposition of an affordable housing condition requiring the payment of a monetary contribution to mitigate the reduction of affordable housing relating to the development, I am satisfied that severance of condition 10 will not result in the balance of the rear DA consent operating in a different manner from that in which the whole would have operated. Condition 10 is a monetary contribution condition, distinguishable from the condition in Windsor Bridge which required NSW Roads and Maritime Services to submit a Strategic Conservation Management Plan, which condition was found to be unable to be severed from the development approval as the removal of measures intended to mitigate adverse heritage impacts before construction commenced would have resulted in the residue of the approval operating differently to the manner in which the whole would have operated.
 
[114] Like the contribution for roadworks in King v Bathurst which required the payment of a monetary contribution to the Council, both before and after the severance of condition 10, here the development consent for DA 80/2023 will remain for the same development.

Key takeaways

This decision highlights the importance of conditions requiring the payment of a monetary contribution being imposed validly, otherwise the consent authority risks them being declared invalid and potentially severed from a development consent. This may have the result that the consent authority is left with no monetary contributions from the development. Notably, an affordable housing condition operates (or operated) differently to a s 7.11 contribution payable under the EPA Act. Had the proceedings involved a s 7.11 contribution there may have been a different outcome. We will continue to monitor any developments in the case law in this area.

Modification of “expired” development consent declared by the Court to be invalid

Monaltrie Area Community Association Incorporated v Santin and Anor [2025] NSWLEC 38 by Robson J (23 April 2025). Read the full decision here.

Background

Monaltrie Area Community Association Incorporation (MAC) commenced Class 4 judicial review proceedings challenging the determination of Lismore City Council (Council) to approve a modification application lodged by Michael Bruno Santin (Santin) to extend the life of a quarry for a period of 12 years.

MAC sought declaratory relief that the approval was invalid and consequential relief restraining Santin from acting on the modification by advancing the primary argument that the previous development consent for the quarry had expired, therefore Council had no power to approve the modification application.

Relevantly, it was agreed that the original development consent commenced on 12 May 1993 and (as modified) contained the following conditions (our emphasis added):

2.   This consent shall permit quarrying for not more than twenty-five (25) years from the date of the commencement of the quarry. This is to be the date upon which the first rock won from the trial blast conducted 8-10 June, 1992 is removed [from] the site or two (2) years from the date of issue of the S92 Notice of Determination.
3.   This consent shall lapse the date 25 years and nine months from the date of commencement at which time extraction shall have ceased and the site restored in accordance with the detailed Plan of [M]anagement. Any extension during the final nine months shall be for the purposes of facilitating the restoration.

The modification approval which was the subject of the proceedings was granted on 10 October 2023, which was a date after the “25 years and nine months from the date of commencement” referenced in condition 3 of the development consent.

Decision

Robson J found that MAC was entitled to the relief it sought on the basis that Council did not have power to approve the modification application because the original development consent had expired.  The modification approval to extend the life of the quarry was thereby declared to be invalid and of no effect.

His Honour held that while the consent had not “lapsed” under s 4.53(4) of the EPA Act the use of the term “lapse” in condition 3 was not intended to invoke or carry the statutory meaning or consequences of that provision. Rather, the term was interpreted to mean “to lose effect through the passage of time,” consistent with its ordinary meaning as defined in the Macquarie Dictionary.

Key takeaway

The Court found that a quarry development consent, originally granted in the early 1990s, had effectively “lapsed” so that it was no longer in existence due to the operation of a condition in the consent itself—despite not having lapsed under the statutory framework of s 4.53(4) of the EPA Act.

The case finds that where a consent has lapsed—whether by statute or condition—a modification cannot revive or extend it. Instead, a new development application will be required, subjecting the project to current planning and environmental standards. For that reason, any proposed modification to extend a time limited consent should be made and finalised prior to the time period expiring.

Court finds development application is ‘integrated development’ despite applicant not electing it as such

Artmade Architectural Pty Ltd v Central Coast Council [2025] NSWLEC 1249 by Dickson C (16 April 2025).  Read the full decision here.

Background

The Applicant filed an appeal against the Council’s deemed refusal of a development application for a childcare centre. At the commencement of the hearing (and after negotiations between the parties), all of the Council’s planning contentions had been resolved, except for one: whether the appeal was validly filed at a time when the right of appeal had arisen.

The core issue was whether the development was “integrated development” under s 4.46 of the EPA Act, thereby triggering a 60-day assessment period before an appeal could be filed. The Applicant had filed its appeal 41 days after submitting the DA.

The Council argued this was premature under s 91(2)(b) of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) as the DA required an aquifer interference approval under the Water Management Act 2000 (WM Act) and should therefore be considered ‘integrated development’ in accordance with s 4.46(1) of the EPA Act.

The Applicant contended that the application was not integrated development because they had not elected for it to be processed as such and argued that the 40-day period under s 91(4) of the EPA Regulation should apply.

Decision

The Court found that, as a matter of fact, the development was integrated development because the basement excavation was likely to encounter groundwater and would therefore require an aquifer interference approval under s 91 of the WM Act. As such, the applicable assessment period was 60 days and the appeal, filed at 41 days, was therefore lodged before appeal rights had arisen, meaning the Court’s jurisdiction under s 8.14 of the EPA Act had not been enlivened.

The Court held that the classification of a development as integrated is determined by legal criteria under ss 1.4 and 4.46 of the EPA Act, not by whether the applicant ticks a box on the application form. The decision in Maule v Liporoni (2002) 122 LGERA 140, which found that classification as integrated development is elective, was not followed.

Nonetheless, because the DA remained undetermined by the Council, the Court did not dismiss the matter but directed the parties to return to Court to discuss potential final orders. The Court also acknowledged that all planning contentions had been resolved through joint expert reports, and the general terms of approval had been issued by WaterNSW, the relevant approval body.

Following this decision, the parties filed consent orders which (among other things) were intended to amend the Applicant’s Class 1 application (the originating process) to ensure that the application was filed at a time that the right of deemed refusal applied. The Court accepted that it had the power to grant the amendment pursuant to ss 64 and 65 of the Civil Procedure Act 2005 and ultimately granted consent to the development application (see Artmade Architectural Pty Ltd v Central Coast Council (No 2) [2025] NSWLEC 1412, available here).

Key takeaways

The decision highlights the importance of ensuring that appeal rights have not expired or indeed have accrued.  Determining the relevant appeal timeframes can be complicated and may vary depending on the nature of the development application itself and the status of the relevant assessment period.

High Court of Australia

High Court confirms environmental group has standing to bring civil enforcement proceedings to enforce obligations of the Forestry Corporation of NSW

Forestry Corporation of New South Wales v South East Forest Rescue Incorporated INC9894030 [2025] HCA 15 before Gageler CJ, Edelman, Steward, Jagot, Beech-Jones JJ (9 April 2025)

View the full decision here, or the High Court’s judgment summary here.

In our July 2024 edition of In the Zone, we provided an overview of the Court of Appeal’s decision in South East Forest Rescue Inc v Forestry Corporation of New South Wales (No 2) [2024] NSWCA 113.  In summary, the Court of Appeal in this case overturned a Land and Environment Court decision in which it was held that the South East Forest Rescue Inc (SEFR) lacked standing to commence civil enforcement proceedings under the Forestry Act 2012 (NSW) (Forestry Act).

In a unanimous decision the High Court determined that SEFR was permitted to pursue civil enforcement proceedings against the Forestry Corporation of NSW (Corporation).

Background

In January 2024, SEFR sought an injunction against the Corporation in Class 4 proceedings in the Land and Environment Court (LEC). The primary judge held that SEFR did not have standing to bring civil enforcement proceedings against the Corporation, seeking equitable relief to enforce the duties and obligations of the Corporation under an ‘integrated forestry operations approval’ (IFOA) issued under Part 5B of the Forestry Act.

However, the Court of Appeal upheld SEFR’s contention that it had a special interest and set aside the LEC orders dismissing the proceedings. In September 2024, the High Court granted special leave on the issue of whether the Court of Appeal had correctly decided that private persons or entities can bring civil enforcement proceedings under the Forestry Act.

Decision - standing

The High Court held there are two limbs to the common law test for standing, which grants rights to a private individual to enforce a public duty, namely:

1. where the individual’s private rights are interfered with, or
2. where the person has a “special”, “sufficient” or “real” interest in the subject matter of the proceedings.

The appellant Corporation sought to limit the second limb by reference to the statutory scheme for enforcement (in this case, the Forestry Act), arguing that the equitable jurisdiction to permit private enforcement of statutory rights could only be invoked where the statutory scheme for enforcement was “inadequate”.  This contention was rejected. The High Court held that, at least so far as public duties and obligations are concerned, the vesting in a court of equitable jurisdiction means that the court may grant declaratory or injunctive relief to persons who meet the common law test for standing, absent any clear and unmistakable statutory intention to the contrary.

It was held that the two limbs of common law standing survived the introduction of Part 5B of the Forestry Act despite it being clearly intended to limit the rights of third parties to bring proceedings.

Key takeaway

The High Court has confirmed that - absent any clear and unmistakable statutory intention to the contrary—if a party can satisfy the common law test of standing they will be able to bring proceedings. This is therefore an important case for access to the courts by community groups seeking to pursue civil enforcement of planning and environmental laws.

In our last edition of In the Zone (available here) we provided a summary of the Environmental Planning and Assessment Amendment Bill 2025 which was introduced to Parliament on 18 February 2025. The Bill received assent on 22 May 2025 and has now commenced.  The Amending Act is available to view here. In summary, the changes made to the EPA Act include:

• Streamlining decision-making processes for the Housing Delivery Authority and improving the efficiency of applications being recommended to the Planning Minister to be declared as State Significant Development, avoiding overlap in advisory functions with the Independent Planning Commission.
• Providing greater flexibility for development applications lodged under a concept proposal, removing the need for concurrent modifications.
• Clarifying that only submissions received during a public exhibition period can be counted for certain purposes such as appeal rights, but late submissions can still be considered in assessments (refer to new clauses 15(3) & (4) in Schedule 1 of the EPA Act).
• Amending ss 4.55 and 4.56 of the Act in response to the NSW Court of Appeal’s decision in Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177, which held that power to modify a development consent only arises where the proposed modification changes the development itself (refer in particular to new sections 4.55(5) and 4.56(1B) of the EPA Act).   The effect of these statutory amendments is that a consent authority is not prevented from modifying a consent merely because the modification only modifies a condition of consent and would not result in a change to the development the subject of the consent.
• Allowing the Planning Minister to declare housing targets for a region or local government area.
• Modernising the planning framework for affordable housing contribution requirements, ensuring they are reinvested locally.
• Removing legacy references to the Six Cities Region and district plans, which will enable a new regional strategic plan for Greater Sydney to be delivered and make the strategic planning framework consistent across NSW.

• The Australian Law Reform Commission has released a Discussion Paper on the Review of the Future Acts Regime under the Native Title Act 1993 (Cth). The ‘future acts regime’ provides the legal framework for doing ‘acts’ that affect native title rights and interests. There are 18 Proposals and 23 Questions in the Discussion Paper. Submissions in response to the Discussion Paper remain open until 10 July 2025. Find out more here.
• Australia’s first declared Renewable Energy Zone (REZ) will formally commence construction within months after the NSW Government awarded ACEREZ the contract to design, build and finance the REZ and operate and maintain it for the next 35 years. Read more here. Further, ten renewable energy projects have been approved to connect to the Central-West Orana REZ capable of powering 2.7 million homes by 2031 in peak periods. Read more here.
• The NSW Government has also announced the first urban renewable energy zone: the Illawarra REZ will see the integration of consumer energy resources such as rooftop solar and home batteries, as well as community-scale batteries and utilisation of spare government land and commercial roof space. Find out more here.
• On 31 March 2025, the Department of Planning, Housing and Infrastructure (Department) released a Planning Circular, which provides best practice guidance for Councils on issuing draft conditions of consent to applicants of Housing Development Applications (HD Applications) lodged under Part 4 of the EPA Act. 

For HD Applications involving 30 or more dwellings, the best practice for imposing conditions of consent is as follows:

• Councils should provide draft conditions of consent to applicants prior to determination and allow 7 days for feedback.
• Councils should consider any feedback received before determining HD Applications.
• Councils should consult with applicants during the assessment of HD Applications, rather than after the assessment and prior to determination.

The Circular notes that imposing conditions of consent is at the discretion of Councils, following any consultation with the applicant.

The Department has also introduced standard conditions of consent and a standard format for notices of determination, which are available on the Department’s website here.

• The National Housing Supply and Affordability Council has released its second annual report – the ‘State of the Housing System 2025’. Key findings included:
  • Dwelling prices and rents continue to outpace the rise in household income, but at a slower rate than in 2023.
  • The supply of new housing is near its lowest level in a decade however demand for housing is expected to slow next year.
  • The supply of social and affordable housing is expected to accelerate.
  • Cyclical constraints to supply are expected to ease but structural constraints remain the principal barrier to supply.

You can view the full report here.

• Energy Australia has settled a greenwashing lawsuit brought by Parents for Climate concerning its “Go Neutral” products. Energy Australia has acknowledged that “offsets do not prevent or undo the harms caused by burning fossil fuels for a customer’s energy use” and released this statement.