The Land and Environment Court of NSW (Court) has provided an instructive reminder to prospective applicants and consent authorities about the principles of standing and owner’s consent in Class 1 merits appeals.
Case background
In the recent decision in Dual Property Group Pty Ltd v Blacktown City Council [2026] NSWLEC 7, the Court affirmed that:
- the applicant on the development application (DA) must also be the applicant on the appeal; and
- owner’s consent to the making of a DA can be provided at any time prior to determination.
Dual Property Group Pty Ltd (Dual) and Moo Corporation Pty Limited (Moo) were related entities with the same sole company director. Moo had entered into a put-and-call option deed with the owner of subject land in north-western Sydney and had owner’s consent to lodge the relevant DA, but both the DA and the associated Class 1 merits appeal proceedings had been lodged by Dual. As the Court noted, Dual did not have the requisite owner’s consent. After being placed into external administration, Dual sought that Moo be substituted in as the Class 1 merits appeal applicant.
The Court was required to consider:
- whether Moo could be substituted in as applicant on the DA having regard to section 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) which make it clear that appeal rights accrue only to an ‘applicant for development consent’; and
- whether Moo could be substituted in as applicant on the Class 1 merits appeal.
Court findings
On the first question, the Court held that the powers of the consent authority under clauses 37 and 38 of the Environmental Planning and Assessment Regulation 2021 (NSW) extend so as to allow the Court, standing in the shoes of the consent authority, to accept an amendment to the DA to substitute in a different person or entity as the applicant.
On the second question, the Court found that sections 64(1) and 65(2)(b) of the Civil Procedure Act 2005 (NSW) (CPA) and rule 19.2 of the Uniform Civil Procedure Rules 2005 (NSW) empower the Court to amend the Class 1 application to remove Dual Property as the applicant and substitute Moo. In particular, the power conferred by section 65(2)(b) of the CPA authorises the Court to grant leave to amend where there has been a mistake in the name of the party which is neither misleading nor gives rise to reasonable doubt as to the identity of the person intended to be made a party.
In these proceedings, the Court found that the evidence showed that the proposed substitution would merely rectify a mistake made by the relevant town planner in lodging the DA, and was not misleading or a cause of doubt as to the identity of the person intended to be a party.
The Court also found that the substitution would allow the issues in dispute to be determined, would correct an error in the proceedings, would avoid the multiplicity of process that would arise were Moo required to begin again in its own name, and would achieve the overriding purpose (being the just, quick, and cheap resolution of the real issues in the proceedings).
The Court therefore approved the application to amend the DA, and granted leave to amend the Class 1 merits appeal application, such that Moo was substituted in for Dual as the applicant in both capacities.
Key takeaway
This case serves as a useful reminder of the importance of ensuring that the correct person or entity is listed as the applicant on a DA and in Class 1 merits proceedings. Whilst the law allows some flexibility, and there are pathways through the Court to correct an error, the ability to substitute in a different person or entity as an applicant is not absolute, and all parties and the Court are therefore served best when this is done correctly the first time around.