In Bay Simmer Investments Pty Ltd v State of New South Wales [2017] NSWCA 135, the NSW Court of Appeal held that the Minister’s consent to the Walsh Bay Arts Precinct development was invalid. The Court’s decision accepted that an application for a ‘staged development’ required at least two or more detailed proposals for separate parts of the site, (as opposed to a single proposal for the site as a whole). The impact of this decision was that it effectively prohibited the widespread practice of using a staged development application to obtain concept approval for a single stage development before going on to gain consent for construction. The decision is estimated to affect $8 billion worth of developments, and cause extensive construction delays.

The NSW Government has reacted by releasing a draft amendment to the Environmental Planning and Assessment Act 1979, which would retrospectively protect existing consents by introducing a savings provision. Additionally, the amendment would change the term ‘staged development applications’ to ‘concept development applications’, in order to reinstate the ability of developers to use this process for single stage developments.

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