Staged development applications or concept approvals?

On 30 June 2017, the NSW Government released a Bill to amend the Environmental Planning & Assessment Act 1979 (EPA Act) to replace the idea of a ‘staged development application’ with a ‘concept development application’.

The Bill is a swift response to a decision of the NSW Court of Appeal in Bay Simmer Investments Pty Ltd v State of NSW [2017] NSWCA 135, which clarified how the staged development application provisions of the EPA Act ought to have been applied.

What is the purpose of the staged development application process?

  • For a developer: to allow certainty that if a concept is approved, any subsequent development that is consistent with the concept will also be permitted.
  • For a consent authority: in approving one part of a development, it will know how that part will fit in with the concept for the whole site.

The provisions have frequently been used by developers applying, and consent authorities approving, a concept for a site, such as building envelopes and proposed uses for different parts.  If the concept is approved, developers will then make one or more subsequent detailed applications consistent with the concept.  The application for a concept approval can also include a detailed proposal for the first stage.

It has not been uncommon for the assessment of certain impacts of development to be deferred until a consent authority is considering a detailed proposal the subject of a separate development application.  For example, where a developer seeks approval for a concept only, a consent authority might delay the assessment of construction related impacts until it receives the subsequent detailed application for the development.

What was the impact of the Bay Simmer decision?

The Court of Appeal’s decision was significant because it clarified that if a developer sought approval for a concept without also seeking approval for the development of stage 1 of that concept:

  • the concept approval must be followed by at least two detailed development applications for separate parts of the site; and
  • the application for the concept approval must specify the sequential development of the separate parts.

The Court of Appeal also pointed out that the assessment of construction impacts of subsequent stages should not be deferred and should be considered as part of the concept approval.  The reason given for this is that the location of different elements of a development will have different impacts upon neighbours during the construction phase.  By delaying construction impacts from the assessment of the concept approval, a neighbouring landowner whose business is affected during construction may not be able to make a submission that a certain element be located at a different part of the site as a result of those impacts.  It would be too late because the subsequent detailed development application must be consistent with the approved concept.

The replacement of ‘staged development’ with ‘concept development’

The purpose of the proposed Bill is to:

  • restore the idea of a ‘concept approval’, which would allow a consent authority to approve a ‘concept’ which can be followed by a single detailed development application, as opposed to two or more detailed development applications as was the case in Bay Simmer; and
  • allow the deferral of the assessment of impacts of carrying out development that is to be the subject of a subsequent development application.

The Department of Planning is seeking comments on the Bill up to 24 July 2017.

This post was prepared by Michael Winram.

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