Consent conditions – Court sends a warning

In Lismore City Council v Ihalainen (No 2) [2014] NSWLEC 198, the Court again drew attention to the importance of ensuring that any documents intended to control the way development is to be carried out under a development consent are expressly incorporated in the consent. The decision also highlights the risks involved in attaching “notes” (rather than conditions) to a development consent.

The Council had granted development permissions for the erection of a dwelling house subject to conditions, one of which required the applicant to construct a fire trail. However, the condition did not describe the location of the fire trail or make any reference to any plans. The applicant had lodged a site plan with the development application which showed the approximate location of the proposed fire trail with a heavy black line but this plan was not referred to in the development consent and had not been stamped by the Council as being an approved plan.

The Council prosecuted the applicant for carrying out development otherwise than in accordance with the development consent, in that the fire trail had not been constructed in the location shown in the site plan.

The issue therefore was whether the development consent incorporated the site plan.

Biscoe J began by pointing out that the advisable way in which approved plans are incorporated into a development consent is for the development consent to expressly identify them and for each plan to be stamped with the Council’s approval and a cross reference to the development consent under which it was approved. His Honour noted that this had not occurred in this case and held that the site plan did not form part of the development consent. The Council therefore failed in its prosecution of the applicant for constructing the fire trail otherwise than in the location shown in the site plan.

The Council had also brought another charge of carrying out development otherwise than in accordance with the development consent but this charge related to the alleged failure to install sediment controls prior to any work commencing. In this case, however, the requirement to install sediment controls came, not from a condition of consent, but from a “note” which stated that “inspections of structural work will not be carried out and work may not proceed until the sedimentation controls are in place”.

It was argued by the defendant that the note was advisory only and did not impose an obligation on the applicant to construct the sediment controls prior to starting work on the fire trail. The defendant argued that the note was a “footnote” and thus deemed not to be a part of the consent under section 35(2)(c) of the Interpretation Act 1987.

The Court rejected the defendant’s argument (but dismissed the charge on other grounds). The Court concluded that the wording of the note indicated that it was intended to be mandatory rather than advisory discretionary and that even though expressed to be a “note” it was actually intended to operate as a condition of consent.

While the Court was prepared to treat the note in this case as if it had been imposed as a condition, the decision highlights the importance of ensuring that any obligations intended to be imposed on an applicant in carrying out development under a development consent are expressed clearly as conditions which must be satisfied. Any notes included in a development consent should be of an advisory nature only.