In the case Nicholas Tang Holdings Pty Limited v Berbic and Wingecarribee Shire Council [2024] NSWLEC 95, the Land and Environment Court invalidated the council’s development consent due to errors in its assessment process.

The Facts

Wingecarribee Shire Council granted development consent for a dwelling house at 3A Holly Road, Burradoo. Nicholas Tang Holdings Pty Limited challenged the consent on the grounds that the council failed to consider mandatory planning provisions, particularly clause 5.21 of the Wingecarribee Local Environmental Plan (WLEP) related to flood planning, and public submissions raising objections based on flooding issues.

Error 1 – Failure to Properly Assess Flood Planning Provisions (Clause 5.21 WLEP)

The Court determined that the council failed to properly consider mandatory flood planning provisions under clause 5.21 of the WLEP. Despite the property being located in a flood-prone area, there was no evidence that the council’s delegate had fully assessed the potential flood impacts. The clause requires councils to ensure that development is compatible with flood behaviour, safe for occupation, and does not worsen flood risks for surrounding properties.

Lesson: Council officers must rigorously assess flood risks for developments in flood-prone areas, ensuring compliance with local planning instruments like the WLEP. This includes obtaining technical reports or flood impact assessments when necessary.

Error 2 – Failure to Consider Public Submissions

The Court also highlighted that several detailed objections raised during the public exhibition period, particularly from affected neighbors, were not adequately considered. These objections focused on the potential flood risks and stormwater impacts. The Environmental Planning and Assessment Act (EPA Act) requires councils to consider all submissions made in relation to a development application.

Lesson: Public submissions, particularly those raising substantive concerns such as flooding, must be carefully reviewed and addressed. Ignoring or inadequately considering objections can lead to judicial review and invalidation of the development consent.

Error 3 – Inadequate Documentation and Record-Keeping

The Court noted that there was no clear record of the assessment process undertaken by the Council delegate. The Council failed to provide any evidence that flood risks had been assessed in accordance with the WLEP, and there was no documentation showing how public submissions were considered. The absence of proper documentation led the Court to conclude that the Council had not fulfilled its statutory obligations.

Lesson: Council officers must maintain clear and comprehensive records of the assessment process, including how mandatory planning provisions and public submissions are considered. Proper documentation is essential in demonstrating that the council has complied with legal requirements.

Error 4 – Reliance on Incomplete or Outdated Reports

The Court found that the Council delegate had relied on a draft assessment report prepared by an external consultant, which was incomplete and had not been reviewed internally. Additionally, the Council delegate granted development consent without sufficient probative evidence regarding flood impacts, as no flood study or impact assessment was provided.

Lesson: Officers must ensure that assessment reports are complete, up-to-date, and reviewed before any development consent is granted. Reliance on incomplete or outdated reports can lead to significant errors in decision-making and the potential for the approval to be invalidated by the Court.

Final comments from the Court

The Court ruled that the council’s errors were significant enough to invalidate the development consent. Specifically, the Court determined that the Council failed to:

• Properly assess the flood risks in accordance with clause 5.21 of the WLEP.
• Adequately consider public objections, particularly in relation to flooding and stormwater impacts.
• Provide any probative evidence to demonstrate that the council had formed a positive state of satisfaction regarding the flood impacts of the development.

Key take-aways

This judgment serves as a critical reminder for council officers to meticulously assess development applications, particularly when it comes to flood risks and public objections. Proper documentation, consideration of mandatory provisions, and thorough internal reviews are essential in ensuring that the council’s decisions withstand scrutiny and legal challenges.

The following practical tips are important when it comes to the assessment of development applications:

1. Flood Planning: it is necessary to always consider local environmental plans and ensure that developments in flood-prone areas are thoroughly assessed for flood risks. Obtain and review technical reports when necessary.
2. Public Submissions: ensure that all submissions are carefully reviewed, and any concerns raised are addressed in the assessment report. Failure to do so can lead to judicial review and overturning of the consent.
3. Comprehensive Documentation: it is necessary for local councils to maintain clear records of the assessment process, including how each relevant consideration was addressed. This documentation can be crucial in defending the Council’s decision if challenged.
4. Internal Reviews: as a safeguard, local councils may wish to ensure that all assessment reports are complete and internally reviewed before granting development consent. This can prevent errors and ensure that all relevant matters are properly considered.

Further reading

You can read the full version of the judgment below.