A Court of Appeal decision has left open the possibility that the amendments to the Environmental Planning & Assessment Act 1979 (EPA Act) made in 2018 have expanded the scope of matters which can be the subject of a merit appeal to the Land & Environment Court.

In NSW Commissioner of Police v Rabbits Eat Lettuce Pty Ltd [2019] NSWCA 182 the Court of Appeal considered an argument that the decision of the Commissioner of Police that a music festival was ‘unsafe’ could be the subject of a merit appeal to the Court. A condition of the development consent for the festival provided that the event could not proceed if the Commissioner of Police (including others) advised it was unsafe.

Before the amendments to the EPA Act in 2018, the types of matters which could be the subject of a merit appeal to the Land & Environment were clearly set out in s97 of the EPA Act. The case involved the scope of s97(2) which provided for a right of appeal for:

‘an applicant who is dissatisfied with a decision that a consent authority, or a person specified by the consent authority, is not satisfied as to a matter, being a specified aspect of the development that is to be carried out to the satisfaction of the consent authority, or person, pursuant to a condition imposed under section 80A (2)’

Section 80A(2) provided that a consent may be granted subject to a condition that a specified aspect of the development that is ancillary to the core purpose of the development is to be carried out to the satisfaction, determined in accordance with the regulations, of the consent authority or a person specified by the consent authority.

Section 97 was replaced with s8.7 which now relevantly provides:

‘(1) An applicant for development consent who is dissatisfied with the determination of the application by the consent authority may appeal to the Court against the determination.

(2) For the purposes of this section, the determination of an application by a consent authority includes:

(a) any decision subsequently made by the consent authority or other person about an aspect of the development that under the conditions of development consent was required to be carried out to the satisfaction of the consent authority or other person,’

In the Land & Environment Court judgment being considered by the Court of Appeal, the primary judge had found that s8.7 had a broader scope than s97 and that it permitted an appeal against the Commissioner of Police’s decision that the event was unsafe.

The Court of Appeal found that the decision of the Commissioner of Police was not one regarding an ‘aspect of the development‘ which was required to be carried out to the satisfaction of the Commissioner. Therefore there was no appeal lying from the decision of the Commissioner.

However, the Court of Appeal noted the differences between s97(2) and s8.7(2)(a) and said:

‘It will be seen, therefore, that the deletion of any requirement that the person be specified, or the aspect be specified, and the inclusion of the word “any”, are verbal changes all of which are apt to expand the class of decisions which fall within s 8.7(2)(a), over and above those which formerly had fallen within s 97(2).

All of the preceding textual considerations are in addition to the removal of the clearest limitation upon former s 97(2), namely, the restriction that there be a condition imposed under s 80A(2).’

The Court also noted, however, that there was nothing in the second reading speech in respect of the amendments to the EPA Act to suggest the scope of s97 was intended to be expanded.

Because the Court found that the Commissioner’s decision in this case was not a type which could be subject to an appeal under s8.7, the Court did not go on to make a decision as to whether s8.7 did in fact expand the scope of matters which can be the subject of an appeal in Class 1 of the Court’s jurisdiction.

There is clearly, however, a basis on which it can be argued in subsequent cases that s8.7 expands the scope of appeals based on the Court of Appeal’s decision.