Planning and Environment – conditions to be imposed on
approval granted by the Court – where conditions proposed by
the Council included conditions as to hours of operation and
lighting – where those conditions, as proposed, accorded with
the evidence – where applicant sought to qualify those
conditions so that they not apply in the event that its development
comes to be used as part of a future project which is exempt
development and the subject of conditions imposed pursuant to the
State Development and Public Works Organisation Act 1971.
Facts: This matter concerned a dispute about
two conditions proposed to be incorporated into a development
approval of a concrete batching plant and pre-cast facility.
The Appellant had earlier successfully appealed against the
Respondent's refusal of its development application. The
parties were unable to resolve a disagreement over the wording for
two of the conditions to be included in the conditions package to
be annexed to the judgment.
The conditions in dispute concerned two issues:
hours of operation (condition 7); and
lighting (condition 8).
The Appellant submitted that it did not wish conditions 7 and 8
to apply in the event that:
a new major project is added to the list of those projects
which are categorised as exempt development under the
Sustainable Planning Regulation 2009; and
the effect is to render the use of the subject development
(which will supply the project) as also being exempt
To overcome its concerns, the Appellant proposed amendments to
the Respondent's conditions, which provided that conditions 7
and 8 would have no effect if the future projects envisaged did
become exempt development.
Decision: The Court held, in declining to add
the Appellant's suggested qualifications to the two
The hypothetical projects envisaged by the Appellant, would
require approval under the State Development and Public Works
Organisation Act 1971 (SDPWOA), which had a mechanism to
resolve conflicts between conditions of development approvals under
the Sustainable Planning Act 2009 and SDPWOA.
It is not for the Court, as a matter of discretion, to
formulate conditions 7 and 8 in a way which seeks to plug perceived
gaps (or arguable gaps) in the way that the legislature has chosen
to deal with resolving the priorities between conditions imposed or
required by the Coordinator-General's report pursuant to the
SDPWOA and other conditions.
It is better to set the condition of the subject approval by
reference to what is appropriate on the basis of the evidence
before the Court and leave such hypothetical matters for resolution
by reference to the legislative provisions, as they might be at the
relevant time, in the event that such an issue were to arise.
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The Council announced planning policies to encourage more inner suburban retirement village and aged care development.
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