A recent decision made by the NSW Land and Environment Court (Court) has identified that irrespective of whether a Local Aboriginal Land Council (LALC) who owns land has given its written permission for a third person to lodge a development application over that land, the New South Wales Aboriginal Land Council (NSWALC) must also give its consent.

The decision was made in the case of Darkinjung Local Aboriginal Land Council v Wyong Coal Pty Ltd (No 2) [2014] NSWLEC 71 .

The proponent for the Wallarah 2 Coal Project (Project) made an application for development consent to develop an underground coal mine near Wyong.  Part of the land is owned by the Darkinjung Local Aboriginal Land Council (DLALC).

Part 6 of the Environmental Planning and Assessment Regulation 2000 outlines procedures relating to development applications, with Clause 49 specifying the following limits on who can make a development application:

  • Clause 49(1) specifies that a development application may be made by the owner of the land to which the development application relates, or by any other person, with the consent in writing of the owner of that land
  • Clause 49(2) identifies that if the development application relates to certain types of state significant development, the proponent does not require the owner’s consent in writing if written notice has been given to the owner of the land before the application is made, or a notice of the intention to lodge the development application has been published in a local newspaper (provided the notice complies with the EP&A Regulations), and
  • Clause 49(3A) identifies that despite subclause 49(1), a development application made in respect of land owned by a Local Aboriginal Land Council may be made by a person referred to in that subclause only with the consent of the NSWALC.

The proponent argued that as it had given appropriate public notice of its intentions, it was not required to have written consent from the DLALC to lodge the development application.

The Court disagreed, stating that ‘Clause 49(3A) should be construed as imposing a requirement that consent to the development application be obtained from the State Land Council, whichever "person" qualifies as an applicant for development consent under cl 49(1)…In short, the text of cl 49(3A) does not suggest that its provisions are displaced when the provisions of cl 49(2) are engaged in respect of a particular development application. As expressed, they are not inconsistent provisions and can be read so that each can operate in respect of the same development application.’

The Court found that as a consequence, the development application lodged by the proponent was defective, but not invalid. 

However, the Court was of the opinion that the defect was of such significance that any determination of the development application without the defect being cured (i.e. the giving of consent by the NSWLAC), would result in an invalid approval of the Project.

This decision has major implications for all development applications in NSW where any part of the development is over land owned by an LALC, as it will require consent from the NSWALC for those developments irrespective of whether the LALC has given written consent, or if appropriate notice has been given for public notification projects.