IN BRIEF - WHAT DEVELOPERS AND CONSENT AUTHORITIES SHOULD CONSIDER REGARDING VALIDITY OF CONDITIONS OF CONSENT
Uncertainty about the validity of conditions of consent is common to both developers/landowners and consent authorities. It is not always "black and white", but there are nevertheless a number of clear axioms governing the validity of conditions of consent.
What is abundantly clear is that consent authorities are empowered to grant development consents subject to conditions ( section 80(1) of the Environmental Planning and Assessment Act 1979). The uncertainty relates to how far and wide these conditions can go - numerous cases in the Land and Environment Court (and other courts) have been fought on these lines.
THE 10 COMMANDMENTS FOR DEVELOPERS AND CONSENT AUTHORITIES
The below 10 commandments will help answer questions from developers such as:
- Isn't the consent authority overreaching?
- How can they impose that condition?
It will also help consent authorities answer questions such as:
- Can we validly impose a condition like this?
- Is a condition like this reasonable?
You must comply with the requirements set out in section 80A of the Act, and the condition must fairly and reasonably relate to one of the statutory powers to impose conditions in section 80A.
You must comply with three tests in the seminal case of Newbury District Council v Secretary of State for the Environment  1 All ER 731:
- The condition must be for a planning purpose, and not an ulterior one. The condition is likely to be for a planning purpose (generally) if:
- one or more of the statutory requirements in section 80A are met
- it is for a purpose authorised by the Act
- The condition must fairly and reasonably relate to the development subject of the development application. The condition is likely to do this if:
- it falls within the proper limits of the consent authorities functions
- it maintains proper standards in local development
- it is imposed in good faith and not to achieve extraneous purposes
- the development benefits from the condition, including for environmental protection reasons
- it relates to a large parcel of land which the land that is the subject of the development application forms part of, even though it does not relate to the land the subject of the application
- it fairly and reasonably relates to one of the statutory powers to impose conditions in section 80A
- the development itself creates the need for the condition
- it is fair and reasonable in the circumstances of the case.
- The condition must not be so unreasonable that no reasonable planning authority could have imposed the condition (in the sense set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation  2 ALL ER 680).
The condition of consent must be reasonably capable of being related to the purpose for which the function of determining a development application is being exercised. That purpose must be ascertained by reference to the statutory provisions.
If a condition is uncertain or lacks specificity or particularity, it will not necessarily be invalid, but it must not go beyond the statutory limit of power being exercised under section 80A of the Act.
You must answer these three questions when determining the validity of the condition:
- Is the condition manifestly unreasonable (i.e. in the Wednesbury sense)?
- Is it authorised by section 80A of the Act?
- If the condition is—on the face of it—within power, was the condition imposed for an ulterior or improper purpose?
While you can impose a condition requiring security in relation to potential damage to property of the consent authority or for the completion of a public work, you must not impose a condition requiring an applicant to provide an indemnity or release to the Council.
You must be careful not to over rely on conditions requiring the registration of a restriction as to the user on the title.
Where there is ambiguity, you must construe development consents against the interests of the consent authority instead of against the interests of the applicant.
While you may imply words into a development consent using a purposive approach to give effect to the underlying purpose of a development consent or a particular condition, you must not read words into a development consent.
You must be aware that clause 98 of the Environmental Planning and Assessment Regulation 2000, regarding compliance with Building Code of Australia and insurance requirements under the Home Building Act 1989, automatically imposes conditions on any development consent involving any building work.
CONSENT AUTHORITIES AND APPLICANTS CAN BE GUIDED BY THESE COMMANDMENTS, BUT LEGAL ADVICE MAY BE NECESSARY
While a consent authority can grant consent unconditionally, it is rare to see this occurring today, with most development consents attaching several pages of conditions.
The above "commandments" therefore are intended to serve as a guide to both consent authorities and applicants. Legal advice may be required to more precisely align facts with the principles, and the above "commandments" serve as a useful starting point when analysing conditions of consent.
Consent authorities and applicants should be aware that the validity of some types of conditions may change if the 2017 reforms to the Act currently being proposed are assented to, particularly for major projects.
Consider seeking legal advice about the validity of conditions of consent and how they should be construed, particularly where there are conditions that create doubt.Todd Neal
Planning and development
Colin Biggers & Paisley
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.