What has happened?
On 28 February 2018, the NSW Land and Environment Court handed down its decision in the following Class 1 proceedings: Ku-ring-gai Council v Bunnings Properties Pty Ltd (No 2) [2018] NSWLEC 19.
The case involved an appeal from a decision by a Commissioner to uphold a Class 1 appeal and to grant consent for development at Pymble including, inter alia, the demolition of existing buildings and the construction of a new building for the purposes of hardware and building supplies.
The appeal turned on whether a decision by the Commissioner to deliver "interim findings" in accordance with the "Amber Light Approach" developed by the Court for use in Class 1 planning appeals was in fact a "final decision".
In considering this issue, the Court sets out a useful overview of the scope of the "Amber Light Approach" and the circumstances in which it may be applied in Class 1 Planning Appeals.
Findings by the Court
Under the Amber Light Approach, the Court delivers an "interim judgment, which falls short of outright refusal of the appeal, but indicates elements of concern in the application which could be amended, such that the appeal could be upheld and an approval granted".
The Court usefully summarised the principles circumscribing the application of the approach in these terms (at [71]):
- the approach can be requested by a party or applied on the Court's initiative;
- the question of its appropriateness is a discretionary exercise with no statutory foundation;
- the Court must be "not persuaded to approve the application in its current form, but the suggested amendments must not significantly alter that proposal - they must be "minor and identifiable amendments, consistent with the application before the Court ... they must have merit warranting consideration and being of comparatively easy scope to address";
- they may, but not necessarily should, render the proposal acceptable to the respondent consent authority;
- in appropriate circumstances, the approach may be seen as "part of the usual conduct" of Class 1 planning appeals;
- the question of whether the approach should be applied is a merit matter and a decision not to apply it is not an error of law (although application of the approach on the Court's own motion could involve a denial of procedural fairness and an error of law); and
- the potential amendments must be defined with "sufficient precision".
Having reviewed the decision by the Commissioner in accordance with the above principles, the Court held that it clearly contained "interim findings" as opposed to a final determination and so rejected the appeal.
Implications
As the Court identifies, application of the Amber Light Approach is often requested by parties to Class 1 planning appeals as a "backup position, secondary to [the] primary claim that [the] proposal should be accepted".
In developing this "backup position", a party to proceedings should have careful regard to the principles outlined above in order to maximise the prospects that it will be adopted by the Court if required.
Further information
For further information on this judgment and its potential implications for your development please contact Marcus Steele, Director, on (02) 8005-1411 or marcus.steele@steelelaw.com.au.