ENVIRONMENT AND PLANNING — State significant development — Ministerial planning order — Declaration under s 4.36(3) of the Environmental Planning and Assessment Act 1979 (NSW) — Housing Delivery Authority — Expression of Interest process — Residential accommodation — Non-statutory criteria — Whether criteria satisfied — Challenge dismissed
ADMINISTRATIVE LAW — Judicial Review — Broad statutory discretion — Legal unreasonableness — Irrationality — Evident and intelligible justification — Failure to make inquiries — Failure to consider relevant considerations — Mandatory relevant considerations — Reliance on departmental advice — Constructive possession of information — Valid declaration of State significant development
Quick Take
1The power under s 4.36(3) of the EPA Act to declare development as State significant is very broad, containing no express mandatory relevant considerations, no prescribed process, and (for residential accommodation) no requirement to obtain IPC advice; the SSD Criteria published by the HDA are non-binding guidance materials that cannot be elevated to statutory or quasi-statutory status constraining the Minister's discretion.
2A Minister exercising a broad statutory discretion may lawfully rely on departmental and panel summaries of proponent submissions without independently verifying underlying feasibility or design material, and without making further inquiries, particularly where the declaration is a preliminary 'gatekeeping' step preceding a separate detailed merit assessment of any resulting development application.
3Historical planning decisions by other panels (such as the SNPP) regarding the same site, and third-party submissions opposing a proposal, are not mandatory relevant considerations for the Minister when making a SSD declaration, even where the SSD Criteria reference addressing previously refused or stalled proposals.
Levi Investments 17 Pty Limited v Minister for Planning and Public Spaces and Ors [2026] NSWLEC 88 — State Significant Development & Judicial Review — Barrister AI
