Although there are no hard and fast rules for what is a
lawful condition, there are fundamental questions that you can ask
in determining whether a condition meets the legal
It is very rare for a planning or environmental approval to be
given without conditions being imposed. Decision-makers often
allude to their approvals having "the most", "the
most stringent" or "the most rigorous"
Conditions are often described as the community price of an
approval, and can be just as much about communicating to
stakeholders the justification for the approval and how its impacts
will be managed. Conditions can also determine whether a project is
feasible, and will proceed.
Most statutes contain very broad tests for determining whether a
particular condition is lawful. Conditions are required to be
"reasonable", "relevant", "reasonably
required", "necessary or desirable" or
"necessary or convenient" . Decision-makers are generally
given a wide discretion in conditioning approvals, and this makes
it impossible and probably undesirable for there to be prescriptive
rules about what is a lawful condition. What is lawful for one
approval may not be lawful for another.
The key questions to ask about conditions
Although there are no hard and fast rules for what is a lawful
condition, there are fundamental questions that you can ask in
determining whether a condition meets the legal tests:
What is the change brought about by the development?
Does the condition respond to that change?
Is the condition proportionate to that change?
Is there a power to impose the condition, or conversely, is
there a prohibition on imposing the condition?
If you can't answer the above questions then it gets a
little awkward, and it needs to be determined whether the condition
is a fundamental part of the approval, and whether the
decision-maker has enough information to give an approval.
While having policies and guidelines that inform conditions can
help to provide a consistent and streamlined process, those
policies or guidelines cannot be slavishly followed. Standard or
precedent conditions can be useful, but need to be applied with
care, and having regard to the particular application before the
The conditions checklist
When reviewing or negotiating conditions, the
same questions come up over and over again. Whether you are
drafting conditions or negotiating conditions, think about:
❏ can the condition be imposed?
fundamentally, is there a statutory prohibition on imposing the
is the condition within the power of the decision-maker?
❏ why do you need the
what is the impact or risk of the development that the
condition is responding to?
is the condition necessary?
is this the right approval for the condition, or is the issue
more appropriately managed on related approvals?
❏ who has to perform the action required
of the condition?
is it the applicant/approval holder?
is it something within the control of the applicant/approval
is the condition trying to impose an obligation on a third
who has to enforce the condition? Is this an approval that can
be enforced by third parties?
❏what does the
is the purpose of the condition clear?
is it too broad or too specific?
is there any ambiguity in the drafting?
is it enforceable? If enforcement of the condition was
required, is it sufficiently clear what the condition
does the condition trigger further approval requirements?
is the condition trying to fundamentally change the development
❏ where does the thing have to be
is the condition requiring something to be done on land within
the applicant/approval holder's control?
❏ when does the thing have to be
are the timeframes for performance clear and unambiguous?
how should timing be framed? Should something be done by a
certain date, triggered by another action or within a set
❏ overall - does the condition work?
how does the condition fit in with other conditions in the
are there any other conditions that overlap or are inconsistent
with the condition?
does the condition mechanically work?
❏ is the condition
does the condition add anything to the outcomes of management
of impacts of the development?
do you know what compliance is going to cost?
is that cost proportionate to the risk or change created by the
does the condition achieve the outcomes it needs to
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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