A decision of the Land and Environment Court confirms the consent requirements for development applications pertaining to Crown land.

Published on 14 December, 2024.

In Save Bungendore Park Inc v Minister for Education and Early Learning [2023] NSWLEC 140 the NSW Land and Environment Court confirmed that section 2.23 of the Crown Land Management Act 2016 (NSW) (CLM Act) establishes an obligation to obtain the consent of the Minister administering the CLM Act (Crown Minister) for the lodgement of a development application over Crown Land (unless the application is for a specified minor work). This requirement is not removed by the provisions of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation 2000) (now Environmental Planning and Assessment Regulation 2021) that exempt public authorities from the requirement to obtain landowner consent.

In these proceedings the applicant, Save Bungendore Park Inc, sought judicial review of the grant of development consent made by the second respondent, the Minister for Planning, for the construction and operation of a new high school in Bungendore partly located on Crown land.

The applicant argued that the Minster for Planning lacked jurisdiction to make the decision to grant development consent because landowner consent to the lodgement of the development application had not been obtained from the Crown Minister. The first respondent, the Minister of Education and Early Learning, asserted that no consent from the Crown Minister was required as the application had been duly notified in accordance with Clause 49 of the EPA Regulation 2000 (now clause 23 of the EPA Regulation 2021) which provides that landowner consent is not required for a development application for state significant development made by a public authority where prescribed public notification is carried out.

Section 2.23 (1) of the CLM Act provides that:

(1) This section –

(a) Applies in relation to dedicated or reserved Crown land for the purposes of the Environmental Planning and Assessment Act 1979 (and any instrument made under that Act), and

(b) Has effect despite anything in that Act (or any instrument made under that Act).

Section 2.23 (5) provides:

(5) to avoid doubt, the Minister’s consent on behalf of the Crown (as to the owner of dedicated   or reserved Crown land) to lodgment of a development application in respect of that land is required for the carrying out of any development to which subsection (2) does not apply.

Justice Pritchard determined at [103(4)] that a regulation made under the EPA Act ‘cannot have the drastic effect of impliedly repealing the specific provisions in s 2.23(1) and (5) of the CLM Act in relation to dedicated or reserved Crown land’.

Decision

It was held that the provision of landowner consent from the Crown Minister was a jurisdictional prerequisite in determining the development application and accordingly, the development consent was held to be invalid. The respondents were ordered to pay the applicant’s cost of the proceedings. Beatty Hughes & Associates acted for the applicant in the proceedings.

Ballanda Sack, Zara Horton