A development can have significant consequences for a neighbour without amounting to “substantial redevelopment” of the building itself.
In Ross v Lane [2022] NSWCA 235, the Court of Appeal considered whether alterations and additions to a top-floor apartment triggered the requirements of the then State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65).
The case also raised a broader question – who authoritatively determines whether a planning instrument applies?
Background
The City of Sydney Council granted development consent for alterations and additions to an apartment in Elizabeth Bay. The works included an additional storey containing living space, a bathroom and an outdoor terrace, together with an internal staircase and a wintergarden.
A neighbouring apartment owner challenged the consent in the Land and Environment Court. The proposal would significantly affect views from the lower level of her apartment. She argued that SEPP 65 applied and that Council had failed to comply with its requirements, including referral of the application to a design review panel.
Council had assessed the application on the basis that SEPP 65 did not apply.
The critical issue
The relevant provision of SEPP 65 applied to development involving the “substantial redevelopment or the substantial refurbishment of an existing building”, provided the other requirements were met.
The neighbour argued that the assessment of what was “substantial” should include the development’s impacts on neighbouring properties, particularly view loss.
That argument raised an important distinction between:
- the extent of the changes to the building; and
- the consequences of those changes for surrounding properties.
What makes redevelopment “substantial”?
The Court rejected the argument that impacts on neighbouring views should determine whether the redevelopment was substantial for the purpose of engaging SEPP 65.
The inquiry concerned the redevelopment of the building itself. Significant view loss did not, of itself, establish that the proposed works satisfied that threshold.
This did not mean that view loss could be disregarded when assessing the development application. Council had separately considered the proposal’s view impacts, including by applying the Tenacity view-sharing principles.
The point was that those impacts did not determine whether SEPP 65 applied in the first place.
The Court also rejected the argument that substantial refurbishment of a single apartment automatically engaged SEPP 65 because the statutory definition of “building” included part of a building. The definition had to be read in context, rather than applied in a way that would bring works of any scale within the policy.
Who decides whether the policy applies?
The judges differed on this issue.
Two judges concluded that the applicability of SEPP 65 was a matter for the consent authority to determine, subject to conventional judicial review. It was not a question of objective fact that the Court could simply determine afresh.
The third judge disagreed. He considered the threshold an objective jurisdictional fact for the Court to determine. However, he concluded that the proposed works did not constitute substantial redevelopment or refurbishment.
The appeal was therefore dismissed.
Practical lessons
The decision illustrates why the scope of a planning instrument must be considered separately from the merits of a proposal.
For applicants and councils, the assessment should explain why the relevant threshold is or is not satisfied. For objectors, evidence of significant amenity impacts may be important to the merits assessment without establishing that a particular statutory requirement has been triggered.
It also illustrates the importance of identifying the correct basis for a legal challenge. Whether a court can determine a threshold question for itself, or review the legality of the consent authority’s determination, can materially affect how proceedings are framed.
Recent consideration in MACH Energy
The jurisdictional reasoning in Ross v Lane was recently considered and criticised by the High Court in MACH Energy Australia Pty Ltd v Denman Aberdeen Muswellbrook Scone Healthy Environment Group Inc [2026] HCA 35, delivered on 7 October 2026.
Two High Court judges expressly criticised the reasoning concerning the identification of applicable planning instruments. A third High Court judge (who was on the NSW Court of Appeal in Ross v Lane – and was in disagreement with the majority of the NSW Court of Appeal) maintained the position he had taken in Ross v Lane – the obligation to consider legally relevant matters cannot be avoided simply by characterising the assessment as evaluative.
Ross v Lane should therefore be read carefully alongside MACH Energy. The distinction between deciding what the law requires to be considered and determining the weight to give those matters remains critical. Reliance on Ross v Lane as a broad answer to a challenge alleging failure to consider a mandatory matter requires particular caution.
