What has happened?
On 30 June 2017, the NSW Land and Environment Court dismissed an appeal against a decision by the Secretary of the Department of Planning and Environment (DPE) to refuse an application for SEARs made by Besmaw Pty Ltd: see Besmaw Pty Limited v Secretary, Department of Planning and Environment  NSWLEC 74.
The application related to a major proposed development comprising an “integrated leisure, tourism, health, residential and employment precinct” at Kurnell. The residential component of the development comprised “1,400 to 2,000 condominiums used in association with the recreational and tourist facilities on the site”.
The Secretary’s decision relevantly stated that (emphasis added):
“… a substantial part of the project comprises condominiums and commercial land uses that are not classified as State Significant Development (SSD) under the [SRD SEPP].
While I appreciate that there may be some interrelationships between the various land uses, I have determined under Clause 8(2)(a) of the SRD SEPP that the proposed condominiums and commercial uses are not sufficiently related to be considered SSD.”
Clause 8(2) of the State Regional Planning Policy (State and Regional Development) 2011 (SRD SEPP) relevantly states (emphasis added):
(2) If a single proposed development the subject of one development application comprises development that is only partly State significant development declared under subclause (1), the remainder of the development is also declared to be State significant development, except for:
(a) so much of the remainder of the development as the [Secretary] determines is not sufficiently related to the State significant development …
Findings by the Court
The Court held:
- The “default position” under cl 8(2) of the SRD SEPP is that “the Secretary is to start from the position that the non-SSD components of a proposed SSD are to be declared SSD, and only carve out those components if the Secretary determines that those non-SSD components are not sufficiently related to the development as a whole”: at .
- This “default position” does not amount to a presumption that non-SSD components of development should be declared to be SSD or give any “implicit weighting” to that position: at .
- When determining whether non-SSD components of development are “sufficiently related to” the SSD components, the words “related to” are to be construed broadly having regard to the statutory context: at .
- The word “sufficiently” gives rise to “an evaluative task and implies an element of discretion” on the part of the Secretary: at .
- This discretion is unconfined “except insofar as may be implied by the subject matter, scope and purpose of the SRD SEPP”: at . The Court elaborated that:
“The failure to circumscribe considerations which the Secretary must take into account is reflective of a legislative recognition that the Secretary, with her experience and understanding of public policy, is best placed to make the determination required in cl 8(2)(a). It is not for the Court to limit this discretion, other than in accordance with general principles of administrative decision-making.”
- In the circumstances of this case, the Court ruled that:
“… it was open to the Secretary to consider the relative size of the non-SSD components of the Proposed Development in forming an opinion as to whether they were ‘sufficiently related to’ the SSD components”.
Where it is proposed to seek approval for development as SSD, this judgment emphasises the need to give careful, early consideration as to whether any non-SSD components of the development are “sufficiently related to” the SSD components.
It cannot be assumed that the Secretary will approach an application for SEARs with the presumption that any non-SSD components of development will be “sufficiently related to” the SSD components.
For further information on this judgment and its potential implications for your development please contact Marcus Steele, Director, on (02) 8005-1411 or firstname.lastname@example.org.