In Mirvac Retail Sub SPV Pty Limited v City of Canada Bay Council [2021] NSWLEC 1598, Senior Commissioner Dixon considered a development application for blanket approval for fitout works for retail tenancies in a heritage listed shopping complex and whether sufficient information was provided to enable the requisite assessment of the application.

The facts of the cased concerned an appeal by Mirvac Retail Sub SPV Pty Limited and Mirvac Capital Pty Limited (together Mirvac) to the Land and Environment Court against the decision of the Council to refuse a development application for blanket approval to carry out fitout works to a number of retail tenancies within the mixed-use development known as Birkenhead Point Shopping Centre, Drummoyne.

Mirvac submitted that the purpose of the ‘blanket’ application (which is not a defined planning term) was to avoid the need for multiple development applications for fitout works when new tenants require new or altered fitouts. The development application did not include any details of the fitout works. In addition, the design of the fitout and the materials used was unknown, and would vary depending on the needs of the future tenants, who were still unknown.

Mirvac’s submission was that the works contemplated would be those that would ordinarily be considered exempt or complying development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP), which did not apply in this case because the Site is a local heritage item under the Canada Bay local Environmental Plan 2013.

The Court dismissed the proceedings and refused to grant development consent on the basis that:

1. The Applicant failed to provide any details about the proposed works which meant the Court could not assess the application against the matters for consideration mandated under section 4.15 of the Environmental Planning and Assessment Act (EP&A Act).
2. Under section 4.15 of the EP&A Act, the Court must consider all matters of relevance to “the development the subject of the development application”.
3. The Court cannot assess the likely impact of the proposed development on the heritage item without understanding the nature of the work.

What information must be included in a development application?

Clause 24 of the Environmental Planning and Assessment Regulation 2021 (Regulation) requires that a development application must be in the approved form and that all information and documents required by that form and the EP&A Act and the Regulation must be provided.

In this case, the Senior Commissioner noted that what constitutes sufficient detail for assessment of an application is to be considered in its context; and the absence of a sketch showing the proposed works, on its own, does not necessarily mean a development application will be refused (SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66 at [15]).

This case is a reminder that any development application will need to provide enough information so that a consent authority understands:

1. Precisely what works are being proposed,
2. The likely impacts of the proposed development, and
3. The extent of the relevant impacts.