In this recent decision, the Land and Environment Court highlighted a critical issue in development assessment – late-stage changes to a development application.

The Court dismissed the appeal and refused development consent, noting the approach resulted in unresolved design and functional problems.

Summary of Proceedings

The case involved a development application for the construction of six residential flat buildings, shop-top housing developments, and associated works in Edmondson Park. While the applicant made numerous amendments to address the Council’s contentions, further changes were proposed including during the hearing.

The Court viewed the applicant’s approach as representative of an unresolved proposal. The Court noted that the ongoing amendments created unintended consequences that had not been fully assessed. This approach contributed to the conclusion of the Court that the proposal could not meet planning requirements, including amenity, design excellence, and practical functionality.

The Court’s Comments

The amendments were intended to address the Council concerns, but they created more issues than they resolved.

The Court observed the following:

1. Unassessed amendments – reliance on last-minute design changes which were proposed as conditions of consent had left critical aspects unexamined, particularly for residential amenity and functionality.
2. Commercial loading design issues – concerns about the adequacy of commercial loading facilities and access for shop-top premises remained unresolved. Reliance on at-grade loading facilities and long transport distances for deliveries were seen as impractical.
3. Design overhaul needed – the Court concluded that the scope of amendments necessary to resolve the design deficiencies went beyond what could be addressed through conditions of consent. A redesign was necessary to address the site’s built form, scale, and amenity outcomes.

Lessons from the Decision

This case underscores the importance of resolving design and functionality issues before a hearing. The Court made it clear that development applications which are plagued by unresolved or evolving elements are unlikely to succeed, even if the applicant proposes post-approval conditions to address them.

Key takeaways include:

1. Early resolution of issues – applicants must ensure that their applications comprehensively address planning controls and community concerns before submission.
2. Limit to amendments – while amendments can be an effective tool, relying too heavily on changes during the appeal process, or suggesting that issues can be resolved through conditions of consent, risks dismissal of the proceedings.
3. Holistic Planning: Applications for complex, mixed-use developments should adopt a cohesive design approach, minimising the need for amendments during proceedings.

Conclusion

Unresolved issues and last-minute changes can erode confidence in a proposal’s viability. This case highlights the importance of robust and thorough preparation to avoid costly delays and potential refusals later down the track.

As the planning landscape in NSW evolves, the focus on comprehensive and well-considered proposals will only grow.

Further reading

You can read a copy of the full judgment below.