Owners consent is still necessary, but not in writing at lodgement

Changes to the rules that apply to owner’s consent for a development application (DA) came into effect earlier this year. The rules set out in the Environmental Planning and Assessment Regulation 2000 are now to the effect that:

• A development application may be made by someone who is not the owner of the land only if that person has the consent of the owner of the land. This preserves the general requirement for owner’s consent. 

• However, owner’s consent is no longer required to be in writing.

• Evidence of owner’s consent is not one of the documents required to be included in a development application lodged with the consent authority.

The changes to the Regulation were made via the Environmental Planning and Assessment Amendment (Planning Portal) Regulation 2020 which came into force on 1 July 2020. The Explanatory Note states the object of the Regulation is “… to make further provision with respect to the use of the NSW planning portal”.

No further explanation as to the rationale for the changes to owner’s consent has been provided. However, the effect is that lodgement of a DA via the planning portal does not require an applicant to upload any document that evidences owner’s consent.

The changes may have been a response to the decision in Johnson Property Group. In that case the Land and Environment Court confirmed that there is no right of appeal from a consent authority’s decision to reject a DA (within 14 days of lodgement), including where the DA is rejected by the Council for lack of owner’s consent being provided by the applicant with the DA. See our article about the case here.

As there is now no requirement to lodge written evidence of owner’s consent, there should no longer be any development applications rejected for lack of lodging it with the DA.

Declaration of consent at lodgement - planning portal

A DA must be lodged through the planning portal and be accompanied by all the documents listed in the schedule to the regulation. This schedule no longer includes the requirement to provide written evidence of owner’s consent.

The clause also requires the DA to be “… in the form that is approved by the Planning Secretary and made available on the NSW planning portal”.

Now, when submitting a development application for lodgement through the planning portal , an applicant is asked in a form to make a “declaration” in relation to owner’s consent:

“I declare that I have shown this document, including all attached drawings, to the owner(s) of the land, and that I have obtained their consent to submit this application”.

A note is also included that refers to section 10.6 of the EP&A Act making it an offence to provide false or misleading information in relation to a development application.

Timing concerns

We assume that if the applicant does not make the declaration required in the form, the DA will not progress to “lodgement”. We would be interested in hearing if anyone has had a different experience. Allowing the application to still proceed to lodgement and determination without the declaration would be inconsistent with the new regulation.

As a development application may be made by someone who is not the owner of the land only if that person has the consent of the owner, a consent authority may still satisfy itself that this is the case. That is, although evidence of the owner’s consent is not required to be lodged, arguably it may be requested.

The body of case law that confirms evidence of owner’s consent can lawfully be provided any time up until determination of the DA - see for example Botany Bay Council v Remath Investments No 6 Pty Ltd (2000) 111 LGERA 446 would apply in the event that such a request was made.

Evidentiary concerns

Obtaining confirmation of owner’s consent in writing is an important means of proving that owner’s consent has in fact been given to the applicant. It is important for the consent authority to be sure that a prerequisite to the lodgement of a development application (and thus granting of development consent) has been satisfied and that a legally valid decision can be made.

The removal of the mandatory requirement to provide written evidence of owner’s consent may have made things a whole lot more complicated. An applicant who is not the owner and does not obtain clear evidence of owner’s consent could find they have to prove that owner’s consent had been verbally provided (which could be difficult).

Written evidence is important in circumstances when an owner may later decide to deny that it provided consent. This could occur where the owner becomes unhappy with the proposal and wishes to maintain that its consent was never provided (noting that giving owner’s consent is a one-off requirement and the consent is not required to changes to the proposal and cannot be withdrawn or revoked - see Rose Bay Afloat Pty Ltd v Woollahra Council (2002) 126 LGERA 36).

For this reason, we would strongly urge that despite the change to the regulation, applicants obtain owner’s consent in writing as they previously would have.