The L&E Court, in Rothwell Boys Pty Ltd v Coffs Harbour City Council [2012] NSWLEC 19, has clarified that the consent of a landowner to an amendment of a development application (DA) is not required.
Clause 49 of the EP&A Regulations expressly requires evidence of landowner’s consent to the making of a DA. However, clause 55 of the Regulations, dealing with the procedure for amending a DA, imposes no such requirement.
The Facts
The case concerned an appeal by Rothwell against refusal of a DA for the construction of a collector road through land that it did not own. Rothwell had entered into a deed with Mr Barker, an adjoining landowner, for construction of the road through his land. The deed indicated Mr Barker’s consent, as landowner, to the making of the DA for the road, and referred to a plan identifying the centre line of the proposed road. The deed was lodged with the DA and was accepted by the council as evidence of landowner’s consent. Following the council’s request that Rothwell consider an alternate road alignment within Mr Barker’s land, Rothwell amended the DA to reflect the changed location of the road. Rothwell appealed against the refusal of the amended DA and Mr Barker was joined to the proceedings to argue that the deed into which he had entered did not evidence his consent to the amendment of the DA.
The Findings
In making its decision, the Court noted that if a DA lodged with landowner’s consent limited the capacity of a consent authority to determine a development consent, by reference to the terms of the landowner’s consent, it would impose restrictions upon the exercise of the discretion neither expressed nor implied in the EP&A Act and Regulations.
The Court found that granting development consent would not cause any injustice to Mr Barker because the holder of a development consent did not, by that fact alone, acquire any right to enter and carry out work on land it did not own.
This case is significant because it has clarified that, once landowner consent has been evidenced, a council can rely on that consent even if the DA is amended or circumstances change prior to determination.
Note: This information is not to be relied upon as legal advice.