Security of development approvals questioned

26 November 2008

The Urban Taskforce says a recent NSW Court of Appeal decision calls into question the ˜bankability of contentious development approvals.

The Taskforces chief executive, Aaron Gadiel, said part of the Court of Appeals decision to strike down a development approval for a Wollongong shopping centre development raised industry-wide concerns.


In this case Wollongong Council had issued a development approval in August 2006, but just over a year later, the then Planning Minister, Frank Sartor, declared the development to be a Part 3A project, Mr Gadiel said.


Part 3A declaration is normally used by the State Government to ˜call-in development proposals of a state or regional significance.


This is the first time were aware of a development that already has planning approval to be called in as a Part 3A.


Lawyers for Wollongong City Council pulled out of the court proceedings because they felt that the Ministers action had invalidated the development approval.


The Court of Appeal said the consequences of the Ministers action were by no means clear, but no ruling was given on the subject because the development consent was found to be invalid on other grounds.


Mr Gadiel said that the possibility that development consents could be retrospectively invalidated by a ministerial declaration was a real concern.


Development approvals are a property right, Mr Gadiel said.


Thats why the law has always protected landowners from cavalier action by public authorities who want to withdraw or overturn approvals already granted.


Well be asking the NSW Government to take action to ensure that Part 3A declarations cant be used to set aside valid development approvals.


Without action, its possible that future ministers will be subject to extensive lobbying to use their powers to overturn a wide range of contentious development approvals.


The Urban Taskforce is a property development industry group, representing Australias most prominent property developers and equity financiers.



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