This edition of our Essential Guide addresses how to draft conditions of development consent that are clear, valid and enforceable under the Environmental Planning and Assessment Act 1979 (the Act).
Section 4.17 of the Act sets out the types of conditions that may be imposed by a consent authority.
A condition can be imposed under s.4.17 if it:
- relates to any matter referred to in section s.4.15(1) of the Act of relevance to the development the subject of the consent;
- requires the carrying out of works relating to any matter referred to in section 4.15(1) applicable to the development (whether or not on land to which the application relates)
- requires the modification or surrender of an existing development consent or existing use right;
- requires the modification or cessation of development (including the removal of buildings and works) regardless of whether it is on the land to which the development application relates
- limits the period during which development may be carried out;
- modifies details of the development, the subject of the consent;
- is authorised to be imposed under a contributions plan.
How to ensure conditions are valid
The first step is to ask whether the condition is of a kind that may be imposed by s.4.17 of the Act. If it is not, the condition should not be imposed.
If the condition is a condition which falls within the scope of s.4.17, the condition also needs to satisfy the ‘Newbury test’. This test was developed by the House of Lords in England in Newbury District Council v Secretary of State for the Environment (Newbury). The Newbury test is regularly applied by the Court when deciding whether a consent condition has been validly imposed. It has three limbs:
- Will the condition be imposed for a planning purpose?
- ‘Planning purpose’ is generally given a wide interpretation, having regard the matters listed in s.4.15 of the Act. If a condition can’t be related to one or more of the matters for consideration in s.4.15, it may not be a condition that can validly be imposed.
- For example, in Hutchison 3G Australia Pty Ltd v Waverley Council,the Council imposed a condition requiring the consent holder to provide an indemnity to Council. This condition was determined not to be for a planning purpose.
- Does the condition fairly and reasonably relate to the proposed development?
- A condition will ‘fairly and reasonably relate’ to the proposed development if the condition is not simply justifiable as one which a reasonable planning authority could impose but one which is fair and reasonable in the circumstances of the case;
- For example, in Dogild P/L v Warringah Councilthe Council had imposed a condition on a development consent for the construction of a four-storey mixed residential and commercial development requiring the creation of a right of way to provide rear access to the development site and seven other adjoining and adjacent properties. The condition was in accordance with a long standing policy of the Council to create rear lane access to the properties to provide improved access for garbage and delivery vehicles. The Court held that, while the condition had a clearly identifiable planning purpose, it did not fairly and reasonably relate to the development for which consent had been sought but was imposed to further the Council’s policy of providing rear access to properties in the vicinity of the development site;
- Is the condition so unreasonable that no reasonable planning authority could impose it?
- This is sometimes described as ‘manifest unreasonableness’ and is a very high threshold. Only rarely is it met.
- One example is the Dogild decision referred to above. In that case the Court had already found that the condition did not fairly and reasonably relate to the proposed development. It went on to say, however, that despite the stringent and exceptional nature of the ‘manifest unreasonableness’ test, it thought the burden imposed by the condition requiring creation of the right of way was so great that the condition failed this test too.
- This test goes to the legal validity of the condition – not whether, as a matter of planning merit, the condition is reasonable.
If the answer to the first or second limb of the Newbury test questions is ‘no’, or the answer to the third limb is ‘yes’, the condition will be liable to be set aside, if challenged.
Conditions should be clear, certain and unambiguous
A condition that is vague or uncertain will be difficult to enforce and may be invalid. Issues also arise when a condition requires a further discretionary decision of the consent authority to be made when the condition does not express an outcome or objective which needs to be achieved and clear criteria against which achievement of the outcome or objective is to be assessed.
To avoid these situations, a condition should, where possible, identify the following:
- what action must be carried out;
- who is responsible for carrying out that action;
- when the action must be done; and
- how the action is to be done (e.g., to what standard?).
Deferred commencement conditions
Under s.4.16(3), a consent authority can impose a condition that defers the operation of the development consent until the applicant has satisfied the authority of certain things. If a condition purports to do so, it must clearly be labelled as a ‘deferred commencement’ condition.
When imposing a deferred commencement condition requiring the submission of further information, the condition should make it clear not only that the further information must be provided within the specified timeframe, but also that the information must be determined by the consent authority to be satisfactory.
A deferred commencement condition should not be imposed as a means to obtain additional information from an applicant about the likely impacts of the development. The likely impacts of the development need to be considered prior to the granting of consent. A failure of the consent authority to properly consider a likely impact of the development at the time the consent is granted will render the whole consent liable to be set aside, if challenged.
For further information about, or assistance with, drafting conditions of development consent, please contact Alice Menyhart or Andrew Brickhill and the Local Government & Planning team.
We acknowledge that the content contained in this guide is, of course, general commentary only. It is not legal advice. Readers should contact us and receive our specific advice on the particular situation that concerns them.
Please note that the law detailed in this Essential Guide is correct as at 23 October 2018.
Our series of Essential Guides are comprehensive yet simple to understand guides on how to deal with certain legislation and problems that Local Government and Councils often face.
  AC 578.
  NSWLEC 151.
 Western Australian Planning Commission v Temwood Holdings P/L (2004) 221 CLR 30  per Callinan J.
  NSWLEC 53.